Bombay High Court
Yogesh Balasaheb Pawar vs The State Of Maharashtra on 2 July, 2018
Author: B. R. Gavai
Bench: B. R. Gavai, Sarang V. Kotwal
(204)- Apeal-1355-11 & group matters.doc. 1
IIN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1355 OF 2011
Pramod Bhimrao Bhosale ]
Age: 23 Years, Occ: Labourer ]
R/o: Vadoli Nileshwar, Taluka Karad ]
Dist: Satara ]
(Presently in Satara District Jail) ]... Appellant
(Accused No.4)
V/s
The State of Maharashtra ]
Through Karad Police Station ]... Respondent.
ALONGWITH
CRIMINAL APPEAL NO.711 OF 2013
The State of Maharashtra ]
(Through Karad Taluka Police Station, ]
Karad, at the instance of Complainant ]
Samadhan Bhagwan Waghmare, ]
R/a - Vadoli-Nileshwar, Tal - Karad, ]
District - Satar) .... Appellant
(Org. Complainant)
V/s
1) Sagar Balasaheb Dubal, ]
Age - 20 years, Occu: Agriculturist, ]
2) Yogesh Balasaheb Pawar, ]
Age - 21 years, Occu: Agriculturist, ]
3) Abhijit Hindurao Dubal, ]
Age - 22 years, Occu : Education, ]
BGP.
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Above Nos.1 to 3 ]
R/a - Vadoli-Nileshwar, Tal - Karad, ]
District - Satara. ]
4) Gorakh Sahebrao Shirsat, ]
Age - 22 years, Occu: Service, ]
R/a - Deolali Pravara, ]
Taluka Rahuri, Dist - Ahmednagar ]...Respondents.
(Org. Accused Nos.1, 2, 3 & 5)
ALONGWITH
CRIMINAL APPEAL NO.1214 OF 2011
Mr. Yogesh Balasaheb Pawar ]
Age: 24 years, Occu: Agriculturist, ]
R/o: Vadoli, Balasaheb, Tal: Karad, ]
Dist: Satara. ]...Appellant.
(Org. Accused No.2)
V/s
The State of Maharashtra ]
(at the instance of Senior Inspector of ]
Police Karad Taluka Police Station ]
Dist. Satara) ]...Respondent.
ALONGWITH
CRIMINAL APPEAL NO.1227 OF 2011
Sagar Balasaheb Dubal ]
Age: 23 Years, Occu: Agriculture, ]
R/o: Vadoli Nileshwar, Tal: Karad, ]
District Satara. ]...Appellant
(Org. Accused No.1)
V/s
The State of Maharashtra ]
Through the Karad Taluka Police Station, ]
Karad, at the instance of Complainant ]
BGP.
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Samadhan Bhagwan Waghmare ]
R/o. Vadoli-Nileshwar, Taluka Karad, ]
District Satara. ]...Respondent.
(Org. Complainant)
ALONGWITH
CRIMINAL APPEAL NO.1327 OF 2011
Abhijit Hindurao Dubal ]
Age: 22 years, Occu: Education ]
R/o: Vadoli Nileshwar, ]
Tal: Karad, District - Satara. ]...Appellant
(Org. Accused No.3)
V/s
The State of Maharahstra ]...Respondent.
(Org. Complainant)
Mr. M. K. Kocharekar, Advocate for the Appellant in Appeal
No.1355/2011.
Mr. R. S. Deshpande i/b Mr. Mahesh Pawar, Advocate for the
Appellant in Appeal No.1227/2011.
Mr. Vikas Kolekar, Advocate for the Appellant in Appeal No.1327 of
2011.
Mrs. S.S. Kaushik, APP for the Appellant/State in Appeal
No.711/2013 and for the Respondents/State in other four appeals.
CORAM : B. R. GAVAI &
SARANG V. KOTWAL, JJ.
DATE : 2nd JULY, 2018
ORAL JUDGMENT (Per B. R. Gavai, J)
1] The Appellant in Criminal Appeal No.1355 of 2011 has BGP.
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Criminal Appeal No.711 of 2013 is filed by the State of Maharashtra being aggrieved by the same judgment and order, thereby acquitting the Accused Nos.2 to 4 for the offence punishable under Section 302 of the IPC and acquittal of Accused No.5.
Criminal Appeal No.1214 of 2011 and Criminal Appeal No.1327 of 2011 are filed by the Accused Nos.2 and 3 aggrieved by the conviction for the offence punishable under Section 323 of the IPC and sentencing to suffer rigorous imprisonment for one year and to pay a fine.
Criminal Appeal No.1227 of 2011 is filed by the Accused No.1 being aggrieved by the same judgment and order, thereby convicting him for the offence punishable under Section 323 of the IPC and also for the offence punishable under Section 3(1)(x) of the BGP.
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2] The prosecution story in brief as could be gathered from the material placed on record is thus :-
For the sake of convenience, the Appellants/Accused in the present Appeals are referred to as they were arrayed in the trial. On 1st April 2004 at around 7.15 p.m., the First Informant - Samadhan Waghmare, deceased Prashant Kamble and one Sushil Waghmare - PW-6 were talking amongst themselves sitting on a wooden log lying near the Samaj Mandir and house of one Shinde. They all belonged to Scheduled Castes. At that time, the accused persons came there. The Accused No.4 - Pramod Bhosale abused them by saying "tumchya aila mahar lawla, maharanna mastya alya ahet (suggesting immorality to their mother and shouting that they MAHARS had become intolerable). The Accused No.1 - Sagar Dubal and Accused No.2 - Yogesh Pawar said that "hyanchya charbya utarawilya pahijet" (their ego should be brought down). On that the First Informant - Samadhan and deceased Prashant asked them why they were abusing on their caste. In reply, the accused threateningly BGP.
::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:42:59 ::: (204)- Apeal-1355-11 & group matters.doc. 6 stated that they would see them. Saying that they went away. 3] After about 15 minutes thereafter the accused again came there. They surrounded Samadhan, Prashant and Sushil. The Accused No.4 - Pramod dealt a slap blow to Prashant. He took out a knife and stabbed Prashant on his chest, arms and back. The First Informant - Samadhan went to his rescue, but the Accused No.4 - Pramod dealt blows of knife and inflicted injuries on his hands. The other accused beat them by kicks and fist blows. They shouted for help. The accused ran away. The injured Prashant and Samadhan were rushed to Cottage Hospital. PW-11 - Dr. Mrs. Trimbake examined and found that Prashant was in a serious condition. She asked him to be removed. He was shifted to Krishna Hospital, Karad, where he was declared dead. Samadhan was treated at the Cottage Hospital for incised wounds on his hands. 4] On the basis of oral report of PW-4 - Samadhan, PW-12
- Shri. Ghogare recorded the statement of PW-4 - Samadhan. On the basis of the said oral statement, First Information Report came to be registered vide Crime No. 60 of 2007. After completion of investigation, a charge-sheet came to be filed in the Court of learned BGP.
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BGP.
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7] The State has also preferred Appeal being Criminal Appeal No.711 of 2013 being aggrieved by the acquittal of the other accused except Accused No.4 for the offence punishable under Section 302 of the IPC.
8] With the assistance of the learned APP as well as learned counsel for the Appellants, we have scrutinized the evidence on record. PW-4 - Samadhan is the First Informant as well as the injured witness. He in his evidence states that on 1 st April 2004 at around 7.15 p.m., he alongwith deceased Prashant and Sushil - PW- 6 were sitting on a wooden log in front of Samaj Mandir. At that time, Accused Nos.1 to 4 came there with one unknown person.
BGP.
::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:42:59 ::: (204)- Apeal-1355-11 & group matters.doc. 9 Accused No.4 - Pramod started abusing on the basis of their caste. Accused No.1 - Sagar and Accused No.3 - Abhijit were also abusing on the basis of caste. Thereafter accused persons left the spot. 9] He further states that at around 7.30 p.m., again Accused Nos.1 to 4 and one unknown person came on the spot. They surrounded the deceased as well as PW-4 - Samadhan and PW-6 - Sushil. Accused No.4 - Pramod slapped near ear of Prashant. Accused No.4 was having weapon like knife and with it he stabbed on the chest and arm of Prashant. He also stabbed on the back. When this witness went to rescue Prashant, at that time Accused No.4 - Pramod gave blows of knife on palm of his both hands. The other accused were giving hand blows and kick blows to the deceased and as well PW-4 - Samadhan and PW-6 - Sushil. After these people started shouting, the accused ran away. The deceased and PW-4 - Samadhan were brought to the Cottage Hospital and thereafter deceased was referred to Krishna Hospital, Karad. In Cottage Hospital, he gave complaint to the Police. 10] Though this witness has been thoroughly cross- examined, nothing damaging has come on record with regard to the BGP.
::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 23:42:59 ::: (204)- Apeal-1355-11 & group matters.doc. 10 assault on the deceased is concerned and his testimony has gone unshaken. No doubt that in so far as giving abuses by the accused is concerned, it appears to be an improvement. PW-6 - Sushil is another eye witness. His evidence is also on the similar lines with that of PW-4 - Samadhan. This witness has identified Accused No.5 in the identification parade. Even in the cross-examination of this witness, nothing damaging has come on record. 11] From the postmortem report, it can be seen that the following injuries were sustained by the deceased :-
"01. Incised wound below left clavical, in second intercostal space, lateral to sternal, tailing downwards, transversl slightly oblique (oval shape). It was of size of 5.5 X 2 X 6 Cm. deep (intra thorasic deep). Edges sharp and clean cut. Age of the injury was within 24 hours. The cause of injury was sharp object.
02. Incised oval shaped stab injury on anterior aspect of left arm in upper 1/3rd region, tailing down wards of size of 3.5 X 1.5 X 2 Cm. (muscle deep). Age of the injury was within 24 hours and it was caused by sharp object.
BGP.
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03. Incised oblique wound, left forearm in upper 1/3rd posteriorly on ulner side. Size of the injury was 3 Cm. X 2 Cm. X 1 Cm. Age of the injury was within 24 hours and its cause was sharp object.
04. Incised over stab wound on left supra spinatous (foss)- 1 Cm. Lateral to midline. Size of the injury was 2 X 1 ½ Cm. 1 ½ Cm. Directed upwards. Age of the injury was within 24 hours and it was caused by sharp object.
05. Incised verticle wound in right scapular region, 8 Cm. Lateral from midline. Its size was of 3 X 2 X 1 Cm. Directed upwards. Age of the injury was within 24 hours and its cause was by sharp object.
06. Incised verticle wound, right scapular region, 2 Cm.
Below medialboarder of scapula of size of 2 X 1.5 X 4 Cm. Age of the injury was within 24 hours and its cause was sharp object.
07. Incised verticle wound on back, near inferior angle of scapula, laterally 4 Cm, from midline. Size of injury was 3 X 1 X 2 Cm. Age of injury was within 24 hours and its cause was sharp object.
08. Incised verticle wound just medially to above BGP.
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mentioned wound. Size of injury was 3 X 1.5 X 4 Cm. Age of the injury was within 24 hours and its cause was sharp object.
09. Incised verticle wound on back 12 Cm. below inferior angle of right scapula, 8 Cm. Laterally from the midline. Size of injury was 3 Cm. X 1.5 Cm. X 5 Cm., and age of the injury was within 24 hours and its cause was sharp object.
10. Laceration on right/great toe and dorso medial aspect, red in colour of size of 3 X 1 ½ Cm., age of the injury was within 24 hours and its cause was hard and blunt object.
11. Abrasion on right second great toe, medical aspect, extending to nailbed, red in colour of size of 1 X 1 Cm. Age of the injury was within 24 hours and its cause was blunt object.
12. Abrasion on left great toe, medical aspect, red in colour of size of 1 X 1 Cm. and it was caused by blunt object."
Following internal injuries were sustained by the deceased:
BGP.
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"01. Second fracture of rib anteriorly, intercostal region, and this injury was corresponding to injury No.1 mentioned in column No.17 of the P.M. Note.
02. Haematoma in lower thorasic region, lateral anterio lateral aspect below the skin of size of 8 X 5 Cm. Age of the injury was within 24 hours and its cause was blunt object.
03. Incised oblique wound in left lung upper lobe, anterior aspect, of size of 4 Cm. X 1 Cm. X 1 Cm., and its cause was sharp object and age of injury was within 24 hours.
04. Incised oblique wound in 3 Cm. apart from above injury of size of 2 X 1 X 1 Cm. Its cause was sharp object and age was within 24 hours.
05. Incised oblique wound on lower lobe of right lung, of size of 2 X 1 X 1 Cm. Age of injury was within 24 hours and its cause was sharp object."
12] In so far as the injuries on PW-4 - Samadhan are concerned, they are certified in the evidence of PW-11 - Dr. Snehal Trimbake. They are as follow :-
"1] Incised wound over R wrist 6 X 2 X 1 Cm. dorsal BGP.
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aspect extending over dorsal aspect of hand edges clearcut.
2] Incised wound over dorsal aspect of L hand 3 X 1 X 1 Cm. clearcut of the injury. Aged in 6 hours. Cause
- sharp object."
13] Taking into consideration the overall view of the matter, it is clear that the Accused No.4 - Pramod with an intention to assault the deceased had come to the place where the deceased alongwith PW-4 - Samadhan and PW-6 Sushil were sitting. Without there being any provocation, he assaulted the deceased. When PW-4
- Samadhan tried to save the deceased, he also assaulted him. As such, we are of the considered view that it is the Accused No.4, who has committed the crime, which resulted in the death of the deceased. As such we find that no interference is warranted with the conviction of Accused No.4 for the offence punishable under Section 302 of the IPC. In so far as the other three accused are concerned, the role attributed to them is only of beating by kick and fist blows. As such, we find that the conviction of the said accused for the offence punishable under Section 323 of the IPC also warrants no interference. In so far as the arguments of Mr. M. K. Kocharekar that BGP.
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14] However, in so far as the sentence awarded to the Accused Nos.2 to 4 for offence punishable under Section 323 is concerned, we find that in the peculiar facts and circumstances of the case, the same needs to be reduced. It is to be noted that all the accused at the time of commission of the offence were aged between 20 to 23 years. The role attributed to them is only assaulting by kicks and fist. In ordinary circumstances, they would be entitled to the benefit of the Probation of Offenders Act, 1958. BGP.
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15] In so far as the conviction of Accused No.1 - Sagar for the offence punishable under Section 3(1)(x) of the SC and ST Act is concerned, we find that there is improvement in the first information with regard to the allegations being made on the basis of caste on the deceased and the witnesses. We are therefore of the view that the conviction for the offence punishable under Section 3(1)(x) of the SC and ST Act would not be sustainable. 16] In so far as the Appeal filed by the State against the acquittal of Accused Nos.1, 2, 3 and 5 for the offence punishable under Section 302 is concerned, we find that no interference is warranted in the said Appeal. The interference against the acquittal is warranted, only when the view taken by the learned Trial Judge is found to be perverse or impossible. As already discussed herein- BGP.
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17] In the result, we pass the following order :-
ORDER
(i) Criminal Appeal No.1355 of 2011 is dismissed.
(ii) Criminal Appeal No. 711 of 2013 is dismissed.
(iii) Criminal Appeal No. 1227 of 2011 of Appellant/Accused No.1 - Sagar Balasaheb Dubal is partly allowed. His conviction and sentence for the offence punishable under Section 3(1)(x) of SC and ST (Prevention of Atrocities) Act is quashed and set aside.
However, his conviction under section 323 IPC is maintained and his sentence is reduced to the period of imprisonment BGP.
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already undergone.
(iv) Criminal Appeal No.1214 of 2011 of Appellant/Accused No.2 - Yogesh Balasaheb Pawar and Criminal Appeal No.1327 of 2011 of Appellant/Accused No.3 - Abhijit Hindurao Dubal are partly allowed. Their conviction under Section 323 IPC is maintained. However, their sentence is reduced to the period of imprisonment already undergone.
(v) Appellant/Accused No.1 - Sagar Balasaheb Dubal in Criminal Appeal No.1227 of 2011, Appellant/Accused No.2
- Yogesh Balasaheb Pawar in Criminal Appeal No.1214 of 2011 and Appellant/Accused No.3 - Abhijit Hindurao Dubal in Criminal Appeal No.1327 of 2011 are on bail. Their bail bonds shall stand cancelled.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J.)
BGP.
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