Bombay High Court
Shrikant @ Rajendra Vilas Chaudhary And ... vs The State Of Maharashtra on 30 October, 2018
Equivalent citations: AIRONLINE 2018 BOM 1197
Author: A. M. Badar
Bench: A. M. Badar
APPEAL-1136-2018-APPA-1733-2018-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1136 OF 2018
WITH
CRIMINAL APPLICATION NO.1733 OF 2018
IN
CRIMINAL APPEAL NO.1136 OF 2018
1) SHRIKANT alias RAJENDRA VILAS )
CHOUDHARY )
)
2) VITHAL LAXMAN GADE )
)
3) HUSSAIN @ IBRAHIM YAKUB SHAIKH )...APPELLANTS
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Debajyoti Talukdar, Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 30th OCTOBER 2018
JUDGMENT :
1 This appeal by original accused nos.1 to 3 is taken up for hearing by dispensing with the paper book on the request of avk 1 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc the learned counsel appearing for appellants/accused nos.1 to 3 as it is reported that by now the appellants/accused have already undergone actual sentence of about 5 years out of total substantive sentence of 7 years of rigorous imprisonment imposed on them by the learned trial court. It is reported that they all are in jail from the year 2013.
2 The appellants/accused nos.1 to 3, by this appeal, are challenging the judgment and order dated 14 th October 2016 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No.314 of 2014, thereby convicting them of the offence punishable under Section 307 read with 34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for 7 years apart from payment of fine of Rs.2,000/-, and in default, to undergo further rigorous imprisonment for a period of 3 months. The appellants/accused nos.1 to 3 were acquitted of offences punishable under Sections 120B and 212 read with 34 of the Indian Penal Code. The co- accused were acquitted of all offences.
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APPEAL-1136-2018-APPA-1733-2018-J.doc 3 Briefly stated, facts of the prosecution case are thus :
(a) Injured PW7 Sudarshan Choudhari was the leader of a panel contesting election of Gram Panchayat Sortapwadi. He had settled the dispute between Sunny Choudhary and Aakash Gore over some post on the Facebook. According to the prosecution case, this act on the part of injured PW7 Sudarshan Choudhari has resulted in the incident of murderous assault on him on 25th July 2013.
(b) According to the prosecution case, there was meeting of Gram Panchayat Sortapwadi on 25th July 2013. Injured PW7 Sudarshan Choudhari along with his friend PW6 Vaibhav Choudhari and driver PW5 Ravindra Gunjal went to the office of Gram Panchayat Sortapwadi at about 10.30 a.m. of that day. Injured PW7 Sudarshan Choudhari went inside the office of the Gram Panchayat whereas his driver PW5 Ravindra Gunjal and his friend PW6 Vaibhav Choudhari had chosen to stay in the four wheeler vehicle itself, which was parked just in front of the office of the avk 3 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Gram Panchayat. At about 12.15 p.m. of 25 th July 2013, PW7 Sudarshan Choudhari started leaving the office of the Gram Panchayat Sortapwadi. When he was getting down the staircase of the building of the Gram Panchayat, appellants/accused nos.1 to 3 namely Shrikant alias Rajendra Vilas Choudhary, Vithal Laxman Gade and Hussain @ Ibrahim Yakub Shaikh met him. They had a talk.
Thereafter, PW7 Sudarshan Choudhari proceeded towards his four wheeler vehicle. When he reached near his vehicle and was about to open the door thereof, appellant/accused no.1 Shrikant @ Rajendra Choudhary assaulted PW7 Sudarshan Choudhari by means of sattur on head as well as other parts of the body. Appellant/accused no.2 Vithal Gade assaulted injured PW7 Sudarshan Choudhari by means of a sword on face as well as other parts of body whereas appellant/accused no.3 Husain @ Ibrahim Shaikh assaulted him by means of a sword on neck and other parts of the body. Being seated in that vehicle, PW5 Ravindra Gunjal - driver of the injured as well as PW6 Vaibhav Choudhari avk 4 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc witnessed the incident of murderous assault on PW7 Sudarshan Choudhari. After hearing shouts of PW7 Sudarshan Choudhari when he was being assaulted, PW4 Avinash Memane, Peon of the Gram Panchayat Sortapwadi also witnessed the incident of assault from gallery of the building of the Gram Panchayat.
(c) Injured PW7 Sudarshan Choudhari was then taken to Noble Hospital, Hadapsar, Pune, where he was treated by PW8 Dr.Suresh Dabalgaonkar. PW6 Vaibhav Choudhari reported the incident to police on 25 th July 2013 itself which has resulted in registration of Crime No.373 of 2013 with Loni Kalbhor Police Station, District Pune.
(d) Routine investigation followed. During the course of investigation vide Memorandum of Panchnama Exhibit 161, Investigating Officer PW10 Sanjay Ahiwale, Assistant Police Inspector, on the basis of voluntary disclosure statement of appellant/accused no.1 Shrikant @ Rajendra Choudhary avk 5 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc made in presence of panch witness PW2 Ganesh Choudhari had recovered two satturs, one sword, three jeans pants and three shirts. Those articles were seized by Recovery panchnama Exhibit 162. Spot of the incident was inspected by PW11 Narayan Pawar, Assistant Police Inspector, in presence of panch witness PW1 Shamrao Adav. Spot panchnama Exhibit 135 was prepared on the day of the incident itself. Blood found on the spot came to be collected and seized. The spot was in front of the office of the Gram Panchayat Sortapwadi. Blood stained clothes of the injured came to be seized vide Seizure panchnama Exhibit 136. During the course of investigation a bike was also seized. Some articles were seized from vehicle of Indica make in presence of PW3 Sugriv Adsule. Statement of witnesses came to be recorded. Seized articles were sent for chemical analysis and on completion of routine investigation, the appellants/accused along with other co-accused were charge-sheeted. It is seen that order of framing Charge against some of the accused persons namely Sunil Sambhaji avk 6 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Chorge, Vijay Govindrao Chorge and Pravin Uttam Chorge was quashed and set aside by this court.
(e) Charge for offences punishable under Sections 307, 120B and 212 read with 34 of the Indian Penal Code was framed and explained to the appellants/accused nos.1 to 3 along with other co-accused. They abjured their guilt and claimed trial.
(f) In order to bring home the guilt to the appellants/accused as well as other co-accused, the prosecution has examined in all twelve witnesses. Panch witness Shamrao Adav is examined as PW1. In his presence Spot panchnama Exhibit 135 was drawn on 25th July 2013 and blood found on the spot came to be collected and seized. Ganesh Choudhari, another panch, is examined as PW2. In his presence, Bajaj Pulsar motorcycle was seized vide panchnama Exhibit 156. This witness had also witnessed voluntary disclosure statement of appellant/accused no.1 Shrikant @ Rajendra avk 7 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Choudhary and showing of the spot of parking of the vehicle. Similarly, this witness has also witnessed voluntary disclosure statement of appellant/accused no.3 Husain @ Ibrahim Shaikh regarding the knowledge about spot where the bike was parked. PW2 Ganesh Choudhari, panch witness, had heard voluntary disclosure statement of appellant/accused no.1 Shrikant @ Rajendra Choudhary by which he had shown his willingness to show the spot where weapon and clothes were kept. The said statement is at Exhibit 161. In pursuant to that voluntary disclosure statement, two satturs, one sword, three pants and three shirts came to be seized vide Seizure panchnama Exhibit 162 by PW10 Sanjay Ahiwale, Assistant Police Inspector. PW4 Avinash Memane, PW5 Ravindra Gunjal, PW6 Vaibhav Choudhari are examined as eye witnesses to the incident of murderous assault on injured PW7 Sudarshan Choudhari. Medical Officer Dr.Suresh Dabalgaonkar of Noble Hospital is examined as PW8. This witness proved Medico Legal Certificate and Discharge Card at Exhibits 178 and 179 avk 8 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc respectively apart from other documents of medical treatment given to the injured. PW9 Jitendra Jadhav is a panch witness to the seizure of vehicle vide panchnama Exhibit 189. PW10 Sanjay Ahiwale, Assistant Police Inspector, has conducted part investigation including recovery of weapons and clothes on the basis of voluntary disclosure statement of appellant/accused no.1 Shrikant @ Rajendra Choudhary. PW11 Narayan Pawar, Assistant Police Inspector, is also examined as the Investigating Officer. Dr.Chandrashekhar Raman, who had examined the injured, is examined as PW12.
(g) Defence of the appellants/accused was that of total denial.
However, they did not enter in defence.
(h) After hearing the parties, by the impugned judgment and order dated 14th October 2016, the learned trial court was pleased to convict the appellants/accused nos.1 to 3 of the offence punishable under Section 307 read with 34 of the avk 9 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Indian Penal Code, and accordingly they are sentenced, as indicated in the opening paragraph of this judgment. 4 I have heard Shri Talukdar, the learned counsel appearing for the appellants/accused. He took me through the entire evidence adduced by the prosecution and argued that the evidence of the injured witness cannot be relied because there were many cases filed against him and he had also filed many cases against several persons. This indicates that he was having many enemies and there is chance of assaulting him by other persons. The learned counsel further argued that the prosecution has failed to establish motive of the crime in question, and therefore, prosecution case is doubtful. It is further argued that accused persons are arraigned by even stating their nick names. Names of the appellants/accused are not tallying with the FIR. The injured was not knowing them. There is nothing to connect the appellants/accused with the main accused and three or four main accused persons are already discharged or acquitted. It is further argued that presence of the First Informant on the spot is avk 10 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc doubtful as his blood stained clothes were not seized. PW2 Ganesh Choudhari was present throughout the incident. Medical Officer has deposed that the injuries were caused by a hard and blunt object. Therefore, the appellants/accused are also entitled for acquittal. The learned counsel further argued that no Test Identification Parade was conducted after arrest of the appellants/accused. Though PW11 Narayan Pawar, Assistant Police Inspector, has stated that there were two to three persons with the injured, no inquiry on this aspect was made. The Investigating Officer has stated that PW6 Vaibhav Choudhari was not there. The learned counsel for the appellants/accused submitted that all these aspects show that the appellants/accused are falsely implicated in the crime in question. Therefore, they are entitled for acquittal.
5 As against this, the learned APP supported the impugned judgment and order of conviction and resultant sentence by arguing that apart from evidence of the injured witness, there are three eye witnesses to the incident and evidence avk 11 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc of all these witnesses are cogent, trustworthy, reliable and consistent. The learned APP further argued that evidence of the injured is corroborated by medical evidence on record. 6 I have carefully examined the rival submissions and also perused the record and proceedings.
7 Evidence adduced by the prosecution regarding sustaining murderous assault by injured PW7 Sudarshan Choudhari is overwhelming and trustworthy. As deposed by eye witnesses examined by the prosecution namely injured PW7 Sudarshan Choudhari, his friend PW6 Vaibhav Choudhari, his driver PW5 Ravindra Gunjal and employee of the Gram Panchayat PW4 Avinash Memane, the incident of murderous assault on the injured took place in front of the office of the Gram Panchayat. This evidence is not at all shattered in cross-examination of all these witnesses. On the contrary, from cross-examination of injured PW7 Sudarshan Choudhari, the defence has elicited the fact that his vehicle was parked at a distance of about 10 to 15 avk 12 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc feet from the office of Gram Panchayat and the incident of assault took place by the side of that vehicle. On this backdrop, version of PW1 Shamrao Adav - panch witness to the Spot panchnama makes it clear that the incident of assault on the victim took place in front of the office of Gram Panchayat Sortapwadi. Blood was found spilled on the scene of occurrence and the sample of the same came to be seized. Recitals of Spot panchnama Exhibit 135 are also in tune with the prosecution case.
8 Trustworthy evidence of PW5 Ravindra Gunjal - driver of the injured and PW6 Vaibhav Choudhari goes to show that immediately after the assault, injured PW7 Sudarshan Choudhari was taken to the Noble Hospital where he was admitted for medical treatment. PW8 Dr.Suresh Dabalgaonkar had examined injured PW7 Sudarshan Choudhari on 25 th July 2013 itself. He noticed the following injuries on person of PW7 Sudarshan Choudhari :
1) Incised Injury - left forearm 4 x 2 x 1.5 cms.
2) Incised Injury - left shoulder 3 x 1.5 x 1
3) Incised Injury - Linear left arm 5 x .5 cm avk 13 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc
4) Incised Injury - left occipital parietal injury 5 x 1.5 x 1
5) Incised Injury - left parietal region 3 x 1 x 1
6) Incised Injury - Mid occipital injury 5 x 2 x 1 bone deep
7) Incised Injury - Right temporal zygonatic 5 x 5.5
8) Incised Injury - right shoulder 7 x 4 muscle deep
9) Incised Injury - right elbow 12 x 3 x by muscle deep
10) Incised Injury - upper lip 1 x .5 x 5
11) Abrasion left pinna 2 x 2
12) Abrasion left great toe 2 x 2
13) Abrasion right great toe 2 x 2
14) Fracture parietal bone
15) Fracture right clavical
16) Fracture left ulma It is, thus, seen that there were 16 injuries on vital parts of injured PW7 Sudarshan Choudhari which he had sustained on 25 th July 2013. Considering the seat of injuries and their size as well as nature, it does become clear that injured PW7 Sudarshan Choudhari had sustained murderous assault on 25th July 2013.
Resultantly, he is the injured witness in the subject crime. avk 14 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 :::
APPEAL-1136-2018-APPA-1733-2018-J.doc 9 According to the prosecution case, apart from evidence of the injured witness, there are three witnesses who had seen happening of the incident of murderous assault on the injured. In 1 the the matter of Balraje @ Trimbak vs. State of Maharashtra Honourable Apex Court has held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it would not be proper to conclude that they would shield real culprit and rope in innocent persons. If after careful analysis and scrutiny of their evidence, evidence given by such witnesses appears to be clear, cogent and credible, then evidence of such witnesses cannot be discarded on the assumption that they are either interested or inimically disposed towards the accused. This principle of appreciation of evidence of prosecution witnesses will have to be kept in mind as one of the eye witness is driver whereas the another is friend of the injured. How evidence of injured witness is required to be appreciated is clarified in catena of judgments of the Honourable Supreme Court. In Shivalingappa Kallayanappa vs. State of Karnataka 2 the 1 2010 (6) SCC 673 2 1994 SCC (Cri) 1694 avk 15 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:18 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Honourable Supreme has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of Uttar Pradesh vs. Kishan Chand 3 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon as held in the matter of Krishan vs. State of Haryana 4. Keeping in mind these principles of appreciation of evidence of injured as well as interested witnesses, let us examine evidence adduced by the star witnesses of the prosecution.
3 (2004) 7 SCC 629 4 (2006) 12 SCC 459 avk 16 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc 10 PW7 Sudarshan Choudhari is the victim of the crime in question, commission of which was witnessed by his driver PW5 Ravindra Gunjal and his friend PW6 Vaibhav Choudhari apart from peon of Gram Panchayat Sortapwadi PW4 Avinash Memane. Evidence of all these witnesses, as such, is of utmost importance for inferring guilt, if any, of the appellants/accused. Let us, therefore, consider what PW7 Sudarshan Choudhari says about the incident in question. He testified that at about 10.30 a.m. of 25th July 2013, along with his driver PW5 Ravindra Gunjal and his associate PW6 Vaibhav Choudhari, he went to the office of Gram Panchayat Sortapwadi by his vehicle. He deposed that PW5 Ravindra Gunjal - driver and PW6 Vaibhav Choudhari stayed in the vehicle whereas he went to the office of the Gram Panchayat Sortapwadi. When he was getting down from the staircase of the Gram Panchayat, he met appellants/accused namely Shrikant @ Rajendra Choudhary, Vithal Gade and Husain @ Ibrahim Shaikh. He talked with them and then proceeded towards his vehicle. As per his version when he was opening the door of his vehicle, he suffered a blow on his head. What he saw thereafter is stated by avk 17 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc him in his evidence. Injured PW7 Sudarshan Choudhari deposed that he saw appellant/accused no.1 Shrikant @ Rajendra Choudhary had assaulted him on his head by means of sattur. Appellant/accused no.2 Vithal Gade assaulted him on face by means of sword whereas appellant/accused no.3 Husain @ Ibrahim Shaikh assaulted him by sword on the neck. Then, they all had given blows of weapons on his shoulder, hands and fingers. PW7 Sudarshan Choudhari stated that because of this assault, he fell down and the accused persons ran away. This injured witness had given the cause and motive for assault as his own efforts in settlement of dispute between Sunny Choudhary and Aakash Gore over some post on Facebook. As per version of this witness, his blood stained clothes were then seized by the police. Evidence of this witness shows that he was admitted to Noble Hospital where he had taken treatment. This witness has identified his assailants while in the dock.
11 Cross-examination of PW7 Sudarshan Choudhari shows that he was leading a panel in the election of the Gram avk 18 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Panchayat. His presence on the spot of the incident was brought on record by his cross-examination. The defence has elicited from this witness that on the day of incident i.e. on 25 th July 2013, there was meeting of the Gram Panchayat. It is further brought on record that during the course of that meeting, this witness was sitting in the office of the Gram Panchayat Sortapwadi. Duration of the incident of interaction with the accused persons and the actual assault is also brought on record from cross-examination of injured witness PW7 Sudarshan Choudhari. From his cross- examination, it is brought on record that after leaving the Gram Panchayat office, injured PW7 Sudarshan Choudhari had a talk for about 1½ minute with the accused persons. Then he proceeded further towards his vehicle which was just 10 to 15 feet away from the office of the Gram Panchayat. The defence has further brought on record from cross-examination of injured PW7 Sudarshan Choudhari that the incident of assault on him took place by the side of his vehicle and time of about 1½ minutes was taken for the incident of assault. From cross-examination of this witness, it is further brought on record that he had filed cases avk 19 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc against Barkya Gade and Anil Choudhari, but subsequently settled those cases. Similarly, two cases were filed against him in the court.
12 In the case in hand, theory of mistaken identity or false implication of the appellants/accused persons does not deserve a moment's consideration. Evidence of injured PW7 Sudarshan Choudhari shows that he was knowing all appellants/accused. He identified them while in the dock as his assailants. Filing of cases by and against this injured witness cannot give inference to assault on him by others because the appellants/accused persons were known to this witness and he has categorically deposed the mode and manner in which the appellants/accused persons had assaulted him. Therefore, though the assailants/accused persons are having nick names also, that does not cast a shadow of doubt on version of this injured witness. Motive of the assault is also coming on record from cross- examination of this witness, though in cases where the injured deposes about the assault on him by the appellants/accused, there avk 20 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc is no need to prove the motive for the assault. Be that as it may, let us examine whether evidence of injured PW7 Sudarshan Choudhari is corroborated by evidence of most natural witnesses to the incident of assault, namely, PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari. This is because, the defence has elicited from cross-examination of injured PW7 Sudarshan Choudhari that the incident of assault took place near the vehicle parked at a distance of 10 to 15 feet away from the office of the Gram Panchayat. Apart from evidence of PW7 Sudarshan Choudhari, evidence of PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari shows that they both had accompanied PW7 Sudarshan Choudhari to the office of Gram Panchayat Sortapwadi, at about 10.30 a.m. of 25 th July 2013. Evidence of all these three witnesses is consistent to the effect that then PW7 Sudarshan Choudhari had been to the office of the Gram Panchayat where as PW5 Ravindra Gunjal - driver and PW6 Vaibhav Choudhari stayed in the vehicle of PW7 Sudarshan Choudhari and that vehicle was parked just near the office of the Gram Panchayat. PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari, in unison, have deposed that at about 12.15 avk 21 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc p.m. of 25th July 2013, PW7 Sudarshan Choudhari came out of the office of the Gram Panchayat and when he was opening the door of the vehicle in which both of them were sitting, appellants/accused persons, namely, Shrikant @ Rajendra Choudhary, Vithal Gade and Husain @ Ibrahim Shaikh, came there. As per consistent version of PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari, appellant/accused no.1 Shrikant @ Rajendra Choudhary assaulted PW7 Sudarshan Choudhari by means of a sattur on head and hand. Appellant/accused no.2 Vithal Gade assaulted PW7 Sudarshan Choudhari be means of a sword on head, hand, face and neck, whereas appellant/accused no.3 Husain @ Ibrahim Shaikh assaulted PW7 Sudarshan Choudhari by means of a sword on head and hand. Both these witnesses further deposed that after the assault, appellants/accused ran away and then they shifted injured PW7 Sudarshan Choudhari to the Noble Hospital, Pune. PW6 Vaibhav Choudhari deposed that then he lodged the FIR of the subject crime. Both these witnesses have duly identified the appellants/accused as assailants of PW7 Sudarshan Choudhari.
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APPEAL-1136-2018-APPA-1733-2018-J.doc 13 From cross-examination of PW5 Ravindra Gunjal identity of appellant/accused no.1 Shrikant @ Rajendra Choudhary is confirmed. It is brought on record by cross- examination of PW5 Ravindra Gunjal that appellant/accused no.1 Shrikant @ Rajendra Choudhary is also known as Shrikant Choudhary. By cross-examining PW6 Vaibhav Choudhari, the defence has brought on record that this witness as well as PW5 Ravindra Gunjal were sitting on the front seat of the vehicle when the assault took place. In cross-examination of PW5 Ravindra Gunjal it is brought on record that the attack was not a sudden attack. Cross-examination of PW7 Sudarshan Choudhari as well as that of PW6 Vaibhav Choudhari and PW5 Ravindra Gunjal shows that the actual assault continued for 1½ minutes. Evidence of these three witnesses goes to show that they were knowing the appellants/accused very well. The actual assault took place when PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari were sitting inside the vehicle and when injured witness PW7 Sudarshan Choudhari was opening the door of that vehicle. Thus, when all these witnesses were previously knowing the appellants/accused avk 23 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc and when the incident of assault took place just near the vehicle in which PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari were sitting, there cannot be any reason to jettison evidence of these two eye witnesses to the assault on surmises and conjectures that there is possibility of mistaken identity of the assault as they are arraigned as accused by their names and nick names. The injured as well as these two witnesses had ample opportunity to see the assailants who were known to all of them. Evidence of all these three witnesses regarding identity of the appellants/accused is not at all shattered in the cross-examination. Version of PW6 Vaibhav Choudhari is gaining full corroboration from the FIR Exhibit 174 lodged by him with promptitude, soon after the assault. 14 There is one more eye witness to the incident of assault and he is PW4 Avinash Memane -Peon of the Gram Panchayat. Evidence of this witness shows that from the gallery of the building of Gram Panchayat he had witnessed the assault. Cross-examination of this witness shows that he is acquainted not only with the injured but also with the appellants/accused. PW4 avk 24 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Avinash Memane has stated in his evidence that after meeting of the Gram Panchayat held on 25 th July 2013, he heard shouts and saw appellant/accused no.1 Shrikant @ Rajendra Choudhary giving blows of sattur and appellant/accused no.2 Vithal Gade as well as appellant/accused no.3 Husain @ Ibrahim Shaikh giving blows of sword on person of PW7 Sudarshan Choudhari. This witness has also duly identified the appellants/accused as assailants. Some insignificant stuff is brought on record from cross-examination of this witness. That is regarding situation of the spot of the incident and presence of other persons in the office of the Gram Panchayat. However, cross-examination of this witness shows that he is a neutral witness. From his cross- examination it is brought on record that appellant/accused no.2 Vithal Gade and appellant/accused no.3 Husain @ Ibrahim Shaikh are neither his friends nor his enemies. It is also brought on record from his cross-examination that PW5 Ravindra Gunjal is driver of PW7 Sudarshan Choudhari. This fact makes it clear that PW5 Ravindra Gunjal is the natural witness to the incident in question. Considering the fact that from cross-examination of PW4 avk 25 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc Avinash Memane it is brought on record that he was acquainted with the appellants/accused persons, there is no question of mistaken identity of the assailants by this witness. This witness, as seen from his cross-examination, had witnessed the incident which lasted for 1½ minutes giving full opportunity to him to identify the assailants, who were known to him. 15 The net result of foregoing discussion requires me to hold that evidence of injured PW7 Sudarshan Choudhari, which is corroborated by most natural witnesses to the incident namely PW4 Avinash Memane, PW5 Ravindra Gunjal and PW6 Vaibhav Choudhari, is fully trustworthy and acceptable. There is nothing in long and searching cross-examination of all these witnesses to disbelieve their version regarding the assault by them on PW7 Sudarshan Choudhari.
16 Cumulative effect of eye witness account given by eye witnesses and the injured witness coupled with evidence of Medical Officer PW8 Dr.Suresh Dabalgaonkar proves the fact that avk 26 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc on 25th July 2013, all appellants/accused had assaulted injured PW7 Sudarshan Choudhari by means of deadly weapons. 17 Evidence of the eye witnesses as well as the injured is gaining corroboration from the version of PW1 Shamrao Adav - panch witness, so also PW11 Narayan Pawar, Investigating Officer. Consistent evidence of both these witnesses shows that soon after the incident, the spot of the incident was inspected on 25th July 2013 and Spot panchnama Exhibit 135 came to be prepared. Evidence of these two witnesses as well as recitals in the Spot panchnama Exhibit 135 shows that spot was in front of building of Gram Panchayat Sortapwadi and the cement road at the spot was stained with blood. Sample of the blood found lying on the spot came to be collected and seized by preparing the Spot panchnama. Similarly, evidence of both these witnesses shows that blood stained clothes of injured PW7 Sudarshan Choudhari came to be seized by preparing panchnama Exhibit 136. This witness certainly corroborates the version of injured PW7 Sudarshan Choudhari as well as evidence of eye witnesses. avk 27 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 :::
APPEAL-1136-2018-APPA-1733-2018-J.doc 18 In presence of PW2 Ganesh Choudhari - panch witness, appellant/accused no.1 Shrikant @ Rajendra Choudhary had made a voluntary disclosure statement on 28 th November 2013. The same was made in presence of Investigating Officer PW10 Sanjay Ahiwale, Assistant Police Inspector. PW2 Ganesh Choudhari and PW10 Sanjay Ahiwale, Assistant Police Inspector, have proved said disclosure statement at Exhibit 161. As per version of these two witnesses, appellant/accused no.1 Shrikant @ Rajendra Choudhary had taken them to a shed near Kirloskar Company of Hadapsar and from the gunny bag kept there, had recovered two satturs, one sword, three pants as well as three shirts. The same came to be seized vide Seizure panchnama Exhibit 162. These witnesses have identified the seized articles including the weapons. Merely because PW2 Ganesh Choudhari had seen the appellants/accused in handcuff at the police station, one cannot infer that they were under duress at that time. As such, on this count alone, it cannot be said that recovery is vitiated. Along with forwarding letter Exhibit 219 seized weapons were sent for chemical analysis. The Chemical Analyzer's Report avk 28 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc at Exhibit 191 shows that the weapons seized at the instance of appellant/accused no.1 Shrikant @ Rajendra Choudhary were stained with human blood. Though it is argued that names of assailants are not tallying with the names mentioned in the FIR, substantive evidence of the First Informant so also the recitals in the FIR unerringly points out that those were the appellants/accused who had assaulted injured PW7 Sudarshan Choudhari. Merely because blood stained clothes of PW6 Vaibhav Choudhari were not seized by the police on the spot, his presence on the spot of the incident cannot be doubted. As the injured as well as eye witnesses are naming the appellants/accused as the assailants, it is not necessary to connect them with the other accused persons.
19 Now let us examine whether prosecution has proved commission of the offence punishable under Section 307 read with 34 of the Indian Penal Code by the appellants/accused persons. As noted in the foregoing paragraphs, PW8 Dr.Suresh Dabalgaonkar of Noble Hospital had found thirteen external avk 29 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc injuries as well as three internal injuries on body of injured PW7 Sudarshan Choudhari. Evidence of this Medical Officer shows that majority of injuries were caused by sharp weapons and three injuries were caused by hard and blunt object. PW12 Dr.Chandrashekhar Raman is a Neurosurgeon. His evidence shows that injured PW7 Sudarshan Choudhari had suffered fracture of parietal bone apart from incised injuries. 20 Evidence on record shows that PW7 Sudarshan Choudhari had suffered injuries by sharp edged weapons such as sword and sattur. Evidence of the Medical Officer shows that the injuries suffered by PW7 Sudarshan Choudhari might have caused his death. In order to bring home the guilt for the offence punishable under Section 307 of the Indian Penal Code, causing of injuries is not at all necessary. Intention coupled with an overt act is sufficient to make out the offence punishable under Section 307 of the Indian Penal Code. In the case in hand, all appellants/accused were armed with deadly weapons. They had chosen head as well as upper body of the victim to cause wounds avk 30 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 ::: APPEAL-1136-2018-APPA-1733-2018-J.doc on him by means of sattur and swords. Several injuries were authored by them on vital parts of body of PW7 Sudarshan Choudhari. This act on the part of the appellants/accused reflects their intention, and in such situation, if they had caused death of PW7 Sudarshan Choudhari, then they would have certainly be held guilty of committing murder of injured PW7 Sudarshan Choudhari. Thus, the prosecution has certainly made out the offence punishable under Section 307 read with 34 of the Indian Penal Code against the appellants/accused.
21 Considering the fact that by assaulting injured PW7 Sudarshan Choudhari by means of deadly weapons, they all had caused injuries on vital parts of body of PW7 Sudarshan Choudhari, it cannot be said that sentence of rigorous imprisonment of 7 years apart from fine of Rs.2000/- and default sentence of rigorous imprisonment of 3 months is too harsh or not proportionate to the crime committed by the appellants/accused and held to be proved.
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APPEAL-1136-2018-APPA-1733-2018-J.doc 22 In this view of the matter, the appeal is devoid of merits, and therefore, the order :
ORDER
i) The appeal is dismissed.
ii) In view of dismissal of appeal, Criminal Application No.1733 of 2018 stands disposed of.
(A. M. BADAR, J.) avk 32 ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:34:19 :::