Bombay High Court
Kishor Kamlakar Patil vs The State Of Maharashtra on 15 November, 2010
Bench: R. C. Chavan
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vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.9 OF 1997.
1. Kishor Kamlakar Patil,
age: 21 years,
residing at Bhendkhal,
Post Navghar, Taluka: Uran,
District : Raigad.
2. Abhay Parshuram Bhagat.
Age: 21 years,
residing at Bhendkhal,
Post Navghar, Taluka: Uran,
District : Raigad. .. Appellants
-versus
The State of Maharashtra .. Respondent.
Ms. Ameeta Kuttikrishnan, i/b Niteen Pradhan, for the Applicants.
Mrs. S. D. Shinde, Additional Public Prosecutor, for the Respondent
State.
CORAM: R.C. CHAVAN, J.
DATED: 15th November, 2010
Judgment
1. This is an appeal against conviction of the appellants for
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the offences punishable under Sections 307 read with 34 of the
Indian Penal Code and sentenced to suffer R.I., for five years and to
pay fine of Rs.500/- in default to suffer R.I., for 3 months, inflicted
by the learned Additional Sessions Judge, Raigad, in Session Case
No.111 of 1993.
2. When the appeal was called out for hearing, Ms. Ameeta
Kuttikrishnan, advocate, holding for Mr N.V. Pradhan, advocate for
the appellant, submitted that the appellant had taken away brief
from their office, long back on l8.l2.2000 and that the appellant had
so acknowledged in the register maintained in the advocate's
office. Therefore, learned counsel Ms. Ameeta Kuttikrishnana, for
the accused, expressed inability to assist the Court, in deciding this
appeal. She submitted that the Court may issue notice to the
appellant or may appoint amicus curiae.
3. The question of issuing notice to to the appellant cannot
arise because the appellants themselves have preferred this
appeal against their conviction and when learned counsel,
appearing on their behalf returned their brief, therefore, it was for
them to ensure that the appeal is prosecuted on their behalf
diligently. After taking the brief way back in 2000, till 2010, they
neglected to engage another advocate. It is clear that they do not
want to prosecute the appeal. As far as appointment of amicus
curiae is concerned, amicus curiae could be appointed when
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inspite of due diligence, accused is not represented before the
Court. Therefore, there is no question of adjourning the hearing any
further for appointing amicus curiae and hearing it again.
Therefore, with the help of learned Additional Public Prosecutor, I
have gone through the record and I am proceeding to decide this
appeal by this judgment.
4. The facts which are material for deciding this appeal are
as under:-
One Rajesh Baburao Thakur, was a worker of Center for
Indian Trade Union and was a member of Communist Party of India
(Marxist). In April, 1992, he had taken up cause of one Pushpalata
Pandharinath Thakur, allegedly kidnapped by present appellants.
He had caused Morcha to be taken out, which led to arrest of the
appellants. The appellants were prosecuted and have been
eventually acquitted in that case; possibly because of some
compromise worked out between the victim, her family and the
appellants.
5. On 23.5.l993, one Pandurang got married at Multi
Purpose Hall of Jawaharlal Nehru Port Trust. Rajesh Thakur
attended the said marriage. Marriage and reception ceremonies
were over at about 5.00 p.m. Rajesh Thakur was chitchatting with
his friend Ramesh Patil. Two appellants alongwith third accused
Kamlakar Bhoir charged at Rajesh and inflicted blows on his
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shoulder, chest and side of abdomen. The third accused Kamlakar
had already left the place. The accused persons ran away in a
rickshaw. The victim Rajesh was taken to hospital where he was
given necessary treatment. On the report made by the victim, an
offence was registered and investigation commenced.
6. In course of investigation, police performed panchnama
of spot and seized some incriminating articles from the spot.
Accused persons were arrested and at the instance of appellants
weapons used in commission of offence were seized. Incriminating
articles were sent to Forensic Science Laboratory, which reported
that the blood stains weapons as well as blood stains on the spot
and those on the victim's clothes were of blood group of victim. On
completion of investigation, the appellants, alongwith Kamlakar
Bhoir, were chargesheeted. Upon commitment of the case by the
learned Judicial Magistrate First Class, Uran, trial commenced
before learned Additional Sessions Judge, Raigad at Alibag.
7. Since appellants and third accused Kamlakar pleaded not
guilty to the charges of offence punishable under Sections, 307,
392 read with 34 of the Indian penal Code and they were put on
trial, at which prosecution examined as many as 9 witnesses in
order to prove the guilt of the appellants. After considering the
prosecution evidence in the light of defence of false implication on
account of previous enmity, learned Additional Sessions Judge
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acquitted the appellants and third accused for offence under
Section 392 read with 34 of the Indian Penal Code and also
acquitted the third accused Kamlakar for the offence punishable
under section 307 r/w 34 of the Indian Penal Cope. He convicted
and sentenced the appellants for offence punishable under Section
307 read with 34 of the Indian Penal Code as mentioned earlier.
Aggrieved thereby the appellants have preferred this appeal.
8. I have heard learned Additional Public Prosecutor and
with her help, I have gone through the entire record. P.W.1, was a
Revenue Inspector, who had been examined to prove the sketch of
the spot drawn by him at the instance of police. This sketch is at
Exh.15. P.W.2, Rajesh Thakur is the victim himself, who was
injured in the assault by two appellants. P.W.3 Ramesh Patil, was
with the victim at the time of incident and had witnessed the entire
incident. P.W.6 Mahadeo, was present at the spot and had seen the
appellants leaving the spot after incident. P.W. 4 Ramesh Thakur
was a panch at the panchnama of spot. P.W. 5, Vijay Gajanan Patil,
was a panch at the panchnama of seizure of articles recovered at
the instance of appellants, has refused to support the prosecution,
and he turned hostile. P.W.7 is the Investigating Officer, Police
Inspector, Patil. P.W. 8, Hanumant, is a driver of rickshaw, which
was allegedly forcibly taken away by the appellants after incident.
He too turned hostile. P.W.9, is Dr. Sunita Arole, who had treated
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the victim after his admission at Sion Hospital.
9. P.W. 9 Dr. Sunita had stated that she treated the victim
and found that the victim had suffered following injuries.
i) incise would over epigastrium 2cm x 1 cm subcutaneous
deep.
ii) incise wound over right hypocondrium 2cm x 1 cm
(depth not probed)
iii) incise wound over right 7th rib 2 cm x 1 cm
subcutaneous deep.
iv) incise wound over right shoulder 2cm x 1 cm
subcutaneous deep.
v) incise wound over arm, middle 1/3 exterior aspect 2cm
x 1 cm.
vi) incise wound over left anterior axillary fold 2 cm x 1
cm subcutaneous deep.
She found that entry of air was decreased on account of
his injuries. There was about 300 CC of blood in the chest cavity.
Witness stated that the injuries were grievous and could have led
to death of the victim. Cross examination of this witness shows
that the witness had failed to mention the measure of dimensions
of injuries, which she clarified to be centimeters. This is not a very
serious lacuna though ideally Medical Officer should have
mentioned that the dimensions were in centimeters. There is
nothing else in the cross examination which could reduce the
veracity of the evidence tendered by the witness. It is also worth of
mentioning that it was suggested to the victim himself who was
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examined as P.W.2 that he had been assaulted by someone else
and because of disputes in the union, he named the appellants as
assailants. Thus that suggestion shows that it has not been
disputed at the trial that the victim had been seriously injured.
10. Both P.W. 2 Rajesh and P.W.3 Ramesh, the victim and
eye witness, categorically named two appellants as the authors of
injuries inflicted on Rajesh. They state that appellant Kishor and
Abhay, inflicted blows by means of Gupti and knife respectively on
shoulder, chest and side of abdomen. The only material
discrepancy in the evidence of these two witnesses is as regards
the clothes which appellants were wearing. P.W. 2 victim Rajesh
stated that the appellants were wearing shirts. P.W.3 Ramesh
stated that they were wearing banians. As rightly submitted by the
learned APP, this is not a serious discrepancy warranting the
disbelief in the victim and his friend. She submitted that the victim
was unlikely to name a wrong person as perpetrator of assault on
him letting real culprit scotfree.
11. In the backdrop of the facts, appellants themselves had
suggested to the victim that there was enmity between the victim
and the appellants or that there was some disputes in the union, as
also the fact that it was suggested to the victim that the appellants
were involved in the case of kidnapping one Pushpalata because of
victim's speech, it would be difficult to infer that the appellants had
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really no grievance about victim and therefore, no motive to launch
such assault. In view of this the evidence of Rajesh P.W.2, duly
corroborated by P.W. 3 Ramesh, would have to be accepted as has
been rightly done by the learned Additional Sessions Judge.
12. The evidence about discovery of weapons at the
instance of appellants, is deficient. P.W.5, Vijay who was panch at
seizure has turned hostile. The Investigating Officer P.W.7, Police
Inspector, Patil, has stated about the seizure in an extremely
casual manner. In his examination in chief, he stated that on
27.5.1993, he attached Gupti at the instance of accused Kishore
Patil under Memorandum of Discovery Panchnama at exh. 25 and
25A and he also attached knife at the instance of accused Abhay
Parshuram, under memorandum of discovery panchnama vide
Exhibit 24 and 24A. Though the learned Trial Judge, in para 22 of
the judgment has observed that memoranda of discovery, have
been proved by prosecution through Investigating Officer and that
solitary statement of Investigating Officer, a retired Police
Inspector, can be taken as sufficient for proving alleged recovery
of weapons under section 27 of the Evidence Act, this conclusion
has to be disapproved. The learned Judge should have seen that it
was necessary for the Investigating Officer to depose as to how the
accused came to disclose about concealment of weapon used in
commission of crime and how weapons came to be discovered at
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the instance of appellant. Summary statement of the witness in
para 2 of his deposition hardly satisfies the requirement of a
discovery under section 27 of the Evidence Act and the learned
Judge should have, therefore, discarded this part of evidence.
13. The learned Additional Public Prosecutor submits that the
discovery of weapons could be excluded from consideration since
in this case there is an eye witness account of the incident given
by two witnesses who would have no reason to name wrong
persons as perpetrators of crime. Therefore, in the face of
evidence of P.W. 2 Rajesh and P.W.3 Ramesh, which has not been
impeached inspite of vigorous cross examination, it cannot be said
that the learned Judge erred in concluding that the appellants were
the authors of the injuries inflicted on the victim.
14. Considering area of body on which injuries have inflicted
and the observations of P.W.9, Dr. Sunita Arole, that the injuries
could have caused death, the learned Judge must be held to have
rightly concluded that the offence of attempt to commit murder
had been duly proved. Since in this case as injuries been caused in
course of attempt to commit murder, offence attracts imprisonment
of life. The learned Judge has duly considered the question as to
whether the benefit of Probation of Offenders Act, could be given to
the appellants and had ruled out such possibility because of legal
bar.
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15. I have carefully considered the possibility of inflicting
some lesser sentence on the appellants in the light of fact that
incident has taken place l7 years ago in l993 when the appellants
were 21 years of age. However, given the nature of assault and
also the fact that appellants have been in jail merely for three
months, before or after conviction, reduction in sentence which
would obviate their revisiting jail is ruled out, since of R.I. for five
years with fine of Rs.500/- would in ordinary course be proper
punishment for offence of attempt to commit murder where injuries
are inflicted. In view of this, even the sentence which is inflicted
does not warrant any interference. In view of this appeal is
dismissed.
16. The appellants shall surrender to their bail and if they do
not surrender, within a period of four weeks, the learned Sessions
Judge, Alibag, shall take necessary steps to take them in custody to
serve the sentence.
(R. C. CHAVAN, J.)
