Bombay High Court
Mahendra @ Mandya S/O Vijay Telgande (In ... vs The State Of Mah. Thr. Pso, Akola on 21 August, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.74.06+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 74/2006
with
CRIMINAL APPEAL NO.112/2006
CRIMINAL APPEAL NO. 74/2006
Raju @ Pintya s/o Madhukar Hivrale
Aged 25 years, occu: education
R/o Anand Nagar, Old city Akola. .. APPELLANT
versus
State of Maharashtra
Through Police Sub-Inspector
of Old City Police Station, Akola. .. RESPONDENT
....................................................................................................................................
Mr. A.S. Mardikar, Sr.Counsel with Mr Khemuka, Adv.for appellant
Mr. T.A. Mirza, Additional Public Prosecutor for respondent-State
.....................................................................................................................................
CRIMINAL APPEAL NO. 112/2006
Mahendra @ Mandya s/o Vijay Telgande
Aged about 29 years , occu: Education
R/o Mahakali Nagar, Old City, Akola. .. APPELLANT
versus
The State of Maharashtra
Through Police Station Officer
Police Station Akola. .. RESPONDENT
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CRI.APPEAL.74.06+
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....................................................................................................................................
Ms.Akshaya Kshirsagar,Adv.(appointed) for appellant
Mr. T.A. Mirza, Additional Public Prosecutor for respondent-State
.....................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 21st August, 2019
ORAL JUDGMENT:
1. Since both Appeals arise from the same crime and the common judgment and order is delivered by the learned trial Judge and since the paper- book is common, the same are being disposed by this common judgment and order.
2. Appeal No.74/2006 is preferred by original accused no.2-Raju @ Pintya Hivrale; whereas Appeal No.112/2006 is filed by original accused no.2- Mahendra @ Mandya Telgande, both of which have been directed against the judgment and order dated 8th February 2006 delivered by learned Ad-hoc Additional Sessions Judge in Sessions Case No.211/2002 whereby the learned Judge of the trial Court has convicted both of them, for offence punishable under section 307 read with Section 34 of the IPC and sentenced them to suffer RI for a period of five years each and to pay a fine of Rs. 500/- each, in default of payment of fine, to suffer RI for six months each. A1-Mahendra was also convicted for offence punishable u/s. 324 of the IPC and sentenced to suffer RI ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 3 for a period of two years and to pay a fine of Rs. 500/- in default, to suffer RI for two months.
3. The prosecution case in brief is that, accused and the victims are R/o Akola. On 7th February 2002 A1-Mahendra and A2-Raju, both met PW3-Anil Sagne in the afternoon. At that time, A1-Mahendra threatened PW3-Anil that he would stab him on that day itself. On the same day at about 9.30 pm, while PW3- Anil was proceeding towards the bypass old Balapur check-post, both the accused approached him. A1 said to him, " Tu khup Majla Ahes; Dadagiri Kartos ka? and assaulted him by means of knife on his right arm, due to which PW3 sustained bleeding injury. PW3-Anil, however, managed to escape from that place. It is the case of the prosecution that the accused then approached PW1- Mohan Giri who happened to be passing through the same road. A2-Raju caught hold the hands of Mohan Giri and A1- Mahendra assaulted him by means of a knife on his chest and hip. At the relevant time, brother of Mohan Giri, namely, PW2-Vasant Sagne was returning back to his house in a taxi. He noticed A1 and A2 running behind his brother. In the meantime, PW2-Vasant Sagne, who is the brother of PW3 Anil Sagane, was returning home in a cab. He noticed A1- Mandya and A2-Pintya chasing his brother Anil Sagne. PW2 Vasant got down from his vehicle, Vasant noticed that A2 Raju had caught hold of hands of Mohan Giri and A1-Mahendra assaulted him by means of a knife on his chest and hip. ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 :::
CRI.APPEAL.74.06+ 4 PW2-Vasant tried to catch the accused, however, they fled away. PW2-Vasant then shifted the injured PW1- Mohan by an auto rickshaw to the Police Station. The police directed him to take the victim to Civil Hospital Akola. Accordingly, PW2 Vasant took him to the hospital. PW2-Vasant then lodged his complaint in the Police Station. PW7-PSI V.D.Patil who was attached to said Police Station registered the offence on the basis of the said complaint vide Crime No.27/2002 Thereafter PSI V.D. Patil proceeded to the place of incident and recorded the spot panchnama. During the same night, injured PW3-Anil Sagne proceeded to the Police Station. Police referred him to the Civil Hospital for medical examination and treatment. PW7-PSI Patil recorded the statements of both the injured PW3-Anil and PW1-Mohan Giri in the hospital. Accused were arrested by the police. Clothes of the injured were taken charge and sent to the Chemical Analyser for its analysis. After completion of investigation, the charge-sheet was filed in the court of learned JMFC. The case was committed to the court of Sessions. The learned trial Judge framed the charge and on assessment of the evidence on record and hearing both the sides, convicted the accused, as aforesaid. Hence these Appeals.
4. Shri Anil Mardikar, learned senior counsel vehemently argued that argued that so far as the role of A2-Raju is concerned, he had no intention to assault PW1. So far as the allegations against A2 u/s 324 of the IPC for allegedly ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 5 assaulting PW3-Anil is concerned, he has been acquitted and only allegation against him is that he has caught hold of PW1-Mohan while A2-Mahendra assaulted PW1. Learned senior counsel contended that the learned trial Judge has erroneously convicted the accused and he has not considered the evidence led by the prosecution witnesses in its proper perspective. He further pointed out that there is no corroboration to the testimony of injured witnesses PW1-Mohan and PW3-Anil. Moreover, the seizure of weapon (knife) at the instance of A1- Mahendra has not been proved by the prosecution beyond reasonable doubt as there is no mention in the panchnama that the knife was sealed. Moreover, there is no mention that it was stained with blood. However, the CA report shows the bloodstains on the knife which according to the learned senior counsel indicates that the prosecution has concocted the case against the accused. Learned senior counsel lastly contended that no independent witnesses have been examined by the prosecution although they were available at the place of the incident There is no investigation in respect of the autorickshaw although it is the case of PW1- Mohan that his clothes were stained with blood and he was taken in an autorickshaw to the hospital. He contended that though according to PW1-Mohan his statement was recorded in the hospital, said statement was not produced by the prosecution in the Court. Learned senior counsel placed reliance upon the judgment in the case of Kailas Namdeo Patil vs. State of Maharashtra, reported in 2017 All MR (Cri) page 462 (SC).
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5. Ms.Akshaya Kshirsagar, learned Advocate (appointed) for the appellant in Appeal No.112/2006, supported the arguments advanced by learned senior counsel. She contended that the A1-Mahendra had no intention to commit murder of either PW1-Mohan or PW3-Anil and the incident had taken place in a spur of moment. It was submitted that as per the evidence of PW2
-Vasant, it was darkness at the place of the incident and as such, it is doubtful whether the accused persons were involved in the said offence. Lastly, she prayed for setting aside the impugned judgment and order.
6. Per contra, Shri T.A. Mirza, learned APP contended that the Court below has rightly assessed the evidence led by the prosecution witnesses and has rightly convicted the A1-Mahendra and A2-Raju, under section 307 r/ws.34 of the IPC. It is submitted that A1-Mahendra was in search of PW3-Anil. He had intention to assault PW3 and after the said incident was over, while returning back, the accused had accosted PW1-Mohan and had assaulted him whereas A2-Raju caught hold of the said witness, that is, PW1 which indicates that they had intention to commit the murder of PW1. He further submitted that the medical evidence supports the ocular testimony of the prosecution witnesses and, therefore, the learned trial Judge has rightly convicted the accused. ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 :::
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7. In order to bring home the guilt of the accused, the prosecution examined in all seven witnesses. The defence of the accused was of total denial. In order to consider the rival contentions, it would be advantageous to go through the evidence led by the prosecution. The prosecution has examined in all seven witnesses, PW1-Mohan and PW3-Anil are the injured witnesses. PW2-Vasant claims to be an eye witness to the incident and the first informant. PW6-Dr. Mohd. Aslam Jamal is the Medical Officer who examined the injured witnesses; PW4 is the Panch witness on the point of recovery of knife at the instance of A1- Mahendra. PW5 is the carrier of muddemal property to CA office ; and PW7 PSI Vishwanath Patil, is the Investigating Officer.
8. The prosecution heavily relied upon the testimony of PW1-Mohan Giri. The testimony of PW1 shows that he was knowing the accused, they were annoyed with him and used to quarrel with him as he used to be in the company of PW3-Anil. On 7th February, 2002 at 9.30 pm, PW1-Mohan came to Balapur naka. At that time, he noticed that both accused were chasing PW3-Anil. A1- Mahendra was holding a knife. According to PW1 after assaulting PW3-Anil, PW3 fled away from that place. The accused asked him about the whereabouts of Anil and said that he used to be in the company of PW3-Anil. A1 Mahendra assaulted him by means of knife on his chest and hip, whereas A2-Raju caught hold of his hands. PW1 sustained injuries therefore he sat down on the ground. ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 :::
CRI.APPEAL.74.06+ 8 Thereafter PW2-Vasant arrived at the spot, who took him to the City Kotwali Police Station by autorickshaw. PW2 Vasant lodged report in the Police Station. PW1 then taken to the hospital. According to PW1-Mohan he was hospitalized for about 20 to 21 days. PW1 identified Art.1( knife) as well as his clothes Art.2(shirt) and Art.3 (pant).
9. During the cross-examination, PW1-Mohan admitted that the road from Balapur Naka to city Police station is a busy road. He stated that the police recorded his statement in the hospital. His character was assailed on the ground that one criminal case for offence punishable u/s 324 IPC is pending against him. PW1 admitted in his cross-examination that he had not stated before the police that as he used to accompany PW3-Anil, the accused were annoyed. PW1 stated that when PW2-Vasant Sagne came on the spot, 2 to 4 other person arrived at that place and Vasant lifted him and took him to the Police Station in an autorickshaw. He stated that there were blood stains in the auto rickshaw. PW1 admitted that he had been to the spot to rescue the quarrel and there was no intention to assault him.
10. A meticulous scrutiny of the testimony of PW1-Mohan indicates that the accused had an intention to assault PW3- Anil Sagne. The evidence of PW1 shows that after assaulting PW3- Anil, the accused turned on him and ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 9 asked him about the whereabouts of Anil. The evidence of PW 1 shows that A1- Mahendra asked him about about the whereabouts of Anil and said that PW1 used to be in the company of PW3-Anil. The said version indicates that the A1 had a grudge in his mind that PW1-Mohan used to remain in the company of Anil (PW3).
11. The testimony of PW3-Anil Sagne shows that on7th February 2002 both the accused met him in the afternoon. A1 said that he would stab him. On the same day at about 9.30 pm, while PW3 was proceeding towards by pass, both the accused approached him. A1 said that "Tu Khup Majlas Ahes, ...Dadagiri Kartos"? He was armed with a knife. A1 assaulted PW3 on his right arm and PW3,therefore, fled away from the spot. He further stated that while he was running both the accused were chasing him, He however hid himself at a short distance from the octroi post and from that place, he saw that PW1 had come on the spot. A2-Raju caught hold of him and A1-Mahendra assaulted him by means of knife. PW3 stated that he thereafter fled away from that spot and went to the Police Station. An improvement was pointed out in his evidence to the effect that he had witnessed the incident by hiding himself. The said improvement goes to the root of the case and creates a serious doubt whether PW3 had witnessed the incident of assault by A1-Mahendra on PW1-Mohan and A2-Raju catching hold of PW1.
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12. The deposition of PW2-Vasant Sagne depicts that on 7 th February,2002 between 9.30 and 9.45 pm, he saw A1-Mahendra and A2-Raju chasing PW3-Anil. A1 was holding a knife. He stated that he stopped his vehicle and asked A2 as to what had happened. On this the A2 told him that Anil ran away from the spot and Mohan came there. A2 caught hold hands of Mohan and A1 assaulted him by means of knife on his chest and hip. PW2 took Mohan to the Police Station by an autorickshaw and lodged his report (Exh.12). PW2 then took PW1 to the hospital where he was admitted. PW2 admitted that about 7 to 8 persons gathered at the place of incident and at the relevant time of incident shops as well as panshops were opened. He further stated that there were bloodstains in the autorickshaw. Nothing damaging could be elicited from the testimony of PW2.
13. So far as the medical evidence is concerned, the deposition of PW6-Dr. Mohd. Aslam Jamal indicates that he examined PW1- Mohan and found the following injuries:-
(1) Stab injury on right chest wall, 6 inter costal space, size 1"x 1/2 x plural cavity deep.
(2) Stab injury on left flank, abdomen laterally of size 1" x ½ x abdominal ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 11 cavity deep.
(3) Stab injury, size 1" x ½ x 1/2" on left gluteal region."
PW6-Dr.Jamal, opined that the injuries were fresh and were caused by hard and sharp object and were possible by knife (Art-1). The injury Nos.1 and 2 were on the vital part of the body and were sufficient to cause death. He issued medical certificate (Exh.73).
PW6 examined PW3-Anil on 8.2.2002. He noticed severe injury on the right arm laterally in the middle 1/3rd admeasuring 2 x ½ x 1 . Injury was fresh and caused by hard and sharp object and was possible by knife (Art-1).
14. The deposition of PW4-Raju Ghate, a panch witness, shows that on 15.2.2002 between 1.00 and 1.30 pm, he was called by the police in the old city Police Station Akola. Since A1-Mahendra was in the lockup; he was brought outside. He states that A1-Mehendra stated that he will produce the knife. The police recorded the memorandum panchnama (Exh.24A). Thereafter the accused led the police and Panchas to a field where there was thorny bush and removed the soil and produced the knife. The police took charge of the said under seizure panchnama (Exh24B). The evidence of PW4 coupled with the Pachnama makes it amply clear that neither there is a reference of bloodstains on the knife nor of sealing of the said weapon. Although no bloodstains were found on the said ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 12 knife, the CA report reveals bloodstains on the knife. In this context, the evidence of the PW5-Kiran Gavai shows that on 22nd March 2002 he carried the said article-1 knife to the CA office and at that time seals were intact. As stated above, as there is no mention of sealing of the knife in the Panchanma as well as in the evidence of PW4-Raju, it appears that the knife was lying idle in the Police Station without affixing the seal. In these circumstances, there is every possibility of tampering with the knife, even the possibility thereafter sprinkling the blood on the knife cannot be ruled out. Thus, the seizure of knife is of less assistance to the prosecution case.
15. So far as the investigation is concerned, no doubt, the Investigating Officer has not recorded the statements of any independent witnesses although panstalls and other shops were opened at the relevant time, as stated by witness PW1-Mohan Giri.
16. Thus, the overall assessment of the evidence led by the prosecution witnesses indicates that as PW1-Mohan used to be in company PW3-Anil and on this count the accused used to get annoyed with him and used to quarrel with him. The said version of PW1-Mohan shows that A1 and A2 had some sort of grudge against PW3-Anil and they were also annoyed with PW1-Mohan as he used to accompany him. It is very clear from the ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 13 evidence of PW1-Mohan that on the date of incident, both the accused were chasing PW3-Anil; A-1 holding a knife , first A1 assaulted PW3-Anil. However only there was injury to the arm of PW3 Anil and he somehow managed to flee away from that place. It appears that the A1 was not satisfied with the said Act and then he turned to PW1-Mohan, enquired with him about the whereabouts of Anil, probably because Anil fled away from that place. A1-Mahendra said to PW1 that he used to be in the company of PW3-Anil. The said version of PW1 makes it amply clear that A1 had a grudge in his mind about PW1 as he used to be in the company of PW3-Anil and on account of this, A-1 Mahindra assaulted PW1 by means of knife on his chest and hip. The medical evidence shows that there were three stab injuries on the body of Mohan PW1 - one on the chest, second on the abdomen and the third injury was on the gluteal region. Out of those injuries , injury nos. 1 and 2 were fatal and sufficient to cause death, in ordinary course of nature. The nature of injuries inflicted by A1-Mahindra on the vital part of the body of PW1-Mohan makes amply clear that A1 had an intention in his mind to kill PW1-Mohan. Therefore, it can be safely said that the offence u/s. 307 of IPC is committed by A1-Mahindra.
17. So far as A2- Raju is concerned, the evidence of PW1 indicates that A2 caught hold of his hands while A1 assaulted him with knife on his chest and hip. The testimony of PW1 shows that first A1 and A-2 proceeded to ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 14 assault PW3-Anil and as Anil skipped from that place by receiving injury to his arm only, A1 and A2 approached towards PW1-Mohan; A2 caught hold of PW2 knowing fully well that A1 was holding a knife in his hand and he had already assaulted PW3- Anil and at that time A1 had also expressed his annoyance by saying to PW 1 that he used to be in the company of PW3-Anil. A2 came to know the intention in the mind of A1 that the A-1 may try to kill PW1-Mohan as he was already holding naked knife in his hand. Inspite of having knowledge that the A1 may kill PW1 Mohan, in order to facilitate his act, A2 Raju caught hold the hands of Mohan. The said act of A2 manifest that the A2 also shared the common intention with A1 to kill PW1-Mohan. Thus, the offence punishable u/s 307 is also proved against the A2-Raju.
18. So far as the allegations against A1 that he had assaulted PW3- Anil on his arm, the medical evidence in respect of PW3 supports the ocular testimony of PW3. In view thereof, it can be safely said that the A1 had committed the offence punishable u/s 324 of IPC in respect of PW3- Anil.
19. Mr. Mardikar, learned senior counsel placed reliance upon the judgment in the case of Kailash Patil & ors.vs. State of Maharashtra, reported in 2017 All MR (Cri) 462 (SC) wherein A-1 caused the death of deceased and the role attributed to accused nos. 3 and 4 was that they caught hold of the ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 15 complainant and embraced him. The Hon'ble Apex Court held that nothing is attributed to them for attacking the deceased. It was held that the incident took place all of a sudden when the accused met complainant party who were returning to their house. Moreover, in that case, earlier there was an incident of altercation between the complainant and the accused party and presence of deceased was not mentioned before the Court in evidence, as mentioned in the FIR. In these circumstances, the Hon'ble Apex Court acquitted the accused nos.3 and 4. In the instant case, a clear intention is made out as discussed supra, in the mind of A2-Raju and therefore in order to facilitate the act of A1-Mahendra, A2 caught hold of PW1. A2 was aware that A1 was holding knife in his hand and he had already attacked PW3 and further aware that there is every possibility of A1 attacking PW1-Mohan and in order to facilitate the said act he has caught hold PW1. With due respect, the facts and circumstances in the case before the Hon'ble Apex Court differ from the facts of the present case.
20. Reliance was also placed on the judgment , in the case of Mithu Singh vs.State of Punjab, reported in 2001 CRI.L.J.1820 by the learned senior counsel. In that case, the Hon'ble Apex Court held that the accused merely accompanying co-accused to house of deceased and merely because accused knew that co-accused was himself armed with pistol and also had knowledge about previous enmity between co-accused and deceased, inference that ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 16 accused had common intention to kill cannot be drawn. It was further held that simply because accused was armed with pistol, does not lead to inference that he had reached house of deceased with common intention to kill.
21. The facts in that case also differ from the facts in the present case. In that case, both the accused went to the house of the deceased. At that time accused Mithu Singh was not aware that the co-accused may have an intention to cause death of deceased, only because he was armed with pistol. In the instant case, A1 was moving with naked knife and he had already attacked PW3-Anil. Moreover, both the accused had grudge against PW1 as he used to be in the company of PW3. In these circumstances, it can certainly be gathered that A2 who had noticed all these aspects must have knowledge that there is every likelihood that the A1 may assualt PW3-Anil and in order to facilitate the said act, he caught hold of PW3 when A1 assaulted PW3 on his chest for the first time and then on other parts of the body by inflicting one after the other blow. He did not restrain A1 from doing the said act and therefore A1 succeeded in inflicting three injuries on the vital part of the body of PW3-Anil and thus shared a common intention.
22. Learned APP placed reliance on the judgment in the case of Israr vs. State of U.P. reported in AIR 2005 SC 249 wherein the Hon'ble Apex Court held in paragraph 20 that the evidence of PW3 to PW5 is consistent and that the ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 ::: CRI.APPEAL.74.06+ 17 accused appellant restrained the movement of the deceased and held him while the other co- accused inflicted knife blows. Thus, as the accused/appellant caught hold of the deceased and facilitated the co-accused to inflict the knife blows on deceased, the Hon'ble Apex Court came to the conclusion that the accused/ appellant had shared the common intention to commit murder of deceased. The learned trial Judge assessed the evidence of the prosecution witnesses in right perspective.
23. In the facts and circumstances of the case, it is held that A1- Mahendra is held guilty for offence punishable u/s 307 r/ws.34 IPC and u/s 324 of the IPC whereas A2-Raju is held guilty for offence punishable u/s 307 r/ws.34 of the IPC, with fine amount as awarded by the trial Court. Hence the following order:-
ORDER
(a) Criminal Appeal Nos. 74/2006 and 112/2006, both are dismissed.
(b) The impugned judgment and order dated 8.2.2006 passed by learned Additional Sessions Judge, Akola in Sessions Case No.211/2002 is hereby maintained.
(c) The appellants who are on bail, shall surrender to their bail bonds, within four weeks, to serve out the remaining part of the sentence. ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 :::
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(d) The professional fees of Ms. Akshaya Kshirsagar, Advocate (appointed) for the appellant in Criminal Appeal No. 112/2006 be paid as per Rules.
JUDGE sahare ::: Uploaded on - 11/09/2019 ::: Downloaded on - 17/04/2020 09:55:51 :::