Vinay Vijay Shinde And Ors vs The State Of Maharashtra
2016 Latest Caselaw 3126 Bom

            This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

                                                                                    Apeal93_2009.doc

    Vidya
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION




                                                                                            
                              CRIMINAL APPEAL NO. 93 OF 2009




                                                                    
    1.   Vinay Vijay Shinde
    2.   Santosh Kashinath Mhatre
    3.   Anil Kashinath Mhatre
    4.   Ravindra @ Ravi Kashinath Mhatre                           ... Appellants




                                                                   
         Vs.
    The State of Maharashtra                                        ... Respondent

    Mr. Niteen Pradhan i/b. Ms. S.D. Khot and Ms. Ameeta Kuttikrishnan,
    Advocate for the appellant nos. 1 to 3.




                                                     
    Mrs. A.S. Pai, APP for the Respondent/State.
                                      ig        CORAM: SMT. V.K. TAHILRAMANI &
                                                       MRS.MRIDULA BHATKAR, JJ.
                                    
                                                   DATE: JUNE 23, 2016

    JUDGMENT (Per Mrs. Mridula Bhatkar, J.)

This Appeal is filed by the appellant/accused nos. 1 to 4 challenging

the judgment and order dated 13th January, 2009 passed by the Additional

Sessions Judge, Greater Mumbai thereby convicting all the four accused for

the offences punishable under section 302 r/w. 34 of the Indian Penal Code

sentencing them to suffer R.I. for life and to pay fine of Rs.500/- each, in

default of payment of fine, to suffer R.I. for one year; the accused were also

convicted for the offences punishable under section 324 r/w. 34 of the Indian

Penal code thereby sentencing them to suffer R.I. for two years each and to

pay fine of Rs.250/- each, in default to suffer R.I. for 6 months. Accused no.

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

Apeal93_2009.doc

4 Ravindra alias Ravi Kashinath Mhatre has expired during the pending of

Appeal.

2. It is the case of the prosecution that the incident of assault took place

on 20th August, 2003 at around 3.30 to 4.30 a.m. at Santacruz, Chunabhatti.

One Rakeshkumar Mishra was assaulted by the appellants/accused outside

his house. On that day in the early morning, Rakesh's brother Brijesh

Kumar and his wife wanted to go to railway station to catch a train,

therefore, his other brother Akhilesh went out to bring autorickshaw. There

were verbal altercations between Akhilesh and appellants/accused and then

the appellants started assaulting Akhilesh with bamboo, stumps and fist

blows. Rakeshkumar, elder brother of Akhilesh went to the spot to rescue

Akhilesh and Brijesh Kumar. All the accused assaulted Rakesh with

bamboo, stumps and fist blows and ran away. All the three brothers went to

the police station, however, the police referred them to the hospital for

treatment. So, they went to Cooper Hospital. Rakeshkumar required head

surgery, so he was shifted to Nanavati Hospital. Surgery was performed on

him, however, 7 days after the incident, Rakesh Kumar died, i.e., on 27 th

August, 2003. On the date of incident, i.e., 20 th August, 2003, Brijesh

Kumar gave information to the police, pursuant to which the FIR was

registered at C.R. No. 309 of 2003. The said FIR is marked as Exhibit 17.

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

Apeal93_2009.doc

Thereafter the police visited the spot, carried out spot panchnama, recorded

statement of the witnesses. After the death of Rakeshkumar, Section 302

was added. Thereafter the accused were arrested. The police drew recovery

panchnama of the weapons. After completion of the investigation, they filed

charge sheet in the Court of Magistrate. The case was committed to the

Sessions Court. The learned Sessions Judge framed charge. The accused

pleaded not guilty. The learned Sessions Judge considered the evidence

tendered by the prosecution and convicted the accused persons. Hence, this

Appeal.

3. In all the prosecution has examined 9 witnesses, i.e., PW-1

Brijeshkumar Mishra, who is an eye-witness and a brother of the deceased;

PW-2 Arvind Ramchandra Ugale, C.M.O.; PW-3 Dr. Manohar Pandurang

Srivastava, who performed postmortem; PW-4 Kuppu Swami Mukan

Harijan, panch on spot panchnama; PW-5 Dr. Rajeev Kamlakant Desai; PW-

6 Dr. Harshad Chandrakant Parekh, who performed surgery on Rakesh

Mishra; PW-7 Akhilesh Mishra, eye-witness; PW-8 Pushpa Anilkumar

Mishra; PW-9 Raghunath Narayan Mahale, P.S.I. attached to Santacruz

Police Station.

4. The learned senior counsel Mr. Niteen Pradhan has submitted that

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

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considering the evidence against the appellants, conviction for murder is

illegal and is to be set aside. He assailed the evidence of PW-1 Brijesh

Mishra, PW-7 Akhilesh Mishra and PW-8 Pushpa Mishra on the point of

probabilities and challenged that whether the incident has taken place the

manner in which it is narrated by these eye-witnesses. Considering the

evidence of Brijesh, Akhilesh and Pushpa, the injuries were caused due to

bamboo to the injured and deceased Rakesh Mishra. As per their evidence,

accused no 3 Anil Mhatre and accused no. 4 Ravindra Mhatre assaulted

Akhilesh and Brijesh with fist blows. There are discrepancies in the

evidence of these eye-witnesses on the point of assault. However, the

injured witness have been the independent witness and Ravindra Pandey,

who claimed to be injured, was not examined by the prosecution. He further

argued that as per the evidence of Akhilesh, the incident has taken place

suddenly. As per his case, accused no. 1 was having wooden bamboo in his

hand and accused no. 2 assaulted with stump. There is delay in recording of

the FIR though all the three brothers went to Santacruz Police Station and

they were sent to Cooper Hospital for medical treatment and thereafter FIR

was registered. There are material omissions in the statement of Pushpa

Mishra which is marked as Exhibits 60 & 61. He further relied on CA

report dated 10th February, 2004 (Exhibits 49, 50 & 51) and pointed that

blood on bamboo stick and cricket stump is found inconclusive. He relied

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

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on the evidence of PW-6 Dr. Harshad Parekh, who has conducted

emergency surgery for carniotomy on deceased on 20 th August, 2013. He

submitted that after 7 days from the incident, the deceased died due to head

injury and septicemia. The learned senior counsel submitted that there was

no intention of the accused to kill the deceased. It was a sudden fight. Thee

factors were not taken into account by the learned trial Judge. The learned

senior counsel pleaded for clear acquittal and alternatively he prayed for

lesser sentence.

5. Learned APP while opposing the Appeal has submitted that

considering the medical report and the evidence of eye-witnesses,

conviction under section 302 is justified.

6. It is a short case of 7 witnesses. There are three eye-witnesses. We

found evidence of these three eye-witnesses consistent. They corroborate

each other. Specific role is attributed to accused nos. 1, 2, 3. Accused nos.

1 and 3 were holding bamboo and accused no. 2 was holding stump. After

going through the evidence of Akhilesh, it is to be necessarily concluded

that it was not premeditated attack but it was a sudden fight which took

place out of verbal altercations in the early hours of morning. We do not

find any reason to disbelieve the evidence of these three eye-witnesses on

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

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the point of actual assault and attributing role of assailants to the accused.

7. The prosecution has tendered sufficient medical evidence to establish

a fact of assault. PW-2 Arvind Ramchandra Ugale examined Brijesh Mishra

and gave evidence in respect of injuries on the person of Brijesh, i.e., entry

in casualty medical register (Exhibit 19). He also examined other injured

perons, namely, Ravindra Prasad Pandey, Akhilesh Mishra PW-7 and made

entry in the medical casualty register marked at Exhibits 19 & 21. He

proved medical certificates about the injuries of Brijesh Mishra, Akhilesh

Mishra and Ravindra Pandey, which are marked at Exhibits 22, 23 and 24.

On the same day he also examined deceased Rakesh Mishra. He noted

down history of assault by known persons. Rakesh Mishra was referred to

surgical department. His entry in the medical casualty register marked at

Exhibit 25.

8. Dr. Manohar Shrivastav PW-3 has performed postmortem on 27th

August, 2008 on the body of Rakesh Mishra and he has opined that due to

extradural haemorrahage with fracture temporal bone and septicemia of

brain. However, in the cross-examination he agreed that if craniotomy is not

properly performed, it may result in haemorrhage.

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

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9. As per the evidence of PW-6 Harshad Parekh, it was emergency

surgery for removal of the clot and decompression. He produced case

papers, which are marked Exhibit 40.

10. This shows that Rakeshkumar had unnatural death. Other eye-

witnesses were also injured on that day. This clearly establishes that

accused have assaulted Rakesh and eye-witnesses. There is no reason to

disbelieve these eye-witnesses, therefore, we confirm the conviction of the

accused. However, the submissions of learned senior counsel on the point

of lesser sentence in view of the circumstances and nature of attack are

worth to consider. We take into account two important factors on the point

of quantum. Firstly, it was a sudden fight and there was no intention of the

accused to kill Rakesh; secondly, deceased Rakesh died 7 days after the

incident, i.e., on 27th August, 2003. Emergency surgery of carniotomy was

performed on him. Thus, we pass the following order:

(i) Conviction under section 302 r/w. 34 against accused nos. 1 to 3 is set

aside.

(ii) Accused nos. 1 and 2 are hereby convicted for the offence punishable

under section 304 Part II for 5 years with fine of Rs.500/- each and in

default, to suffer R.I. for 3 months.

(iii) Accused no. 3 is hereby convicted for the offence punishable under

This Order is modified/corrected by Speaking to Minutes Order dated 04/07/2016

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section 304 Part II for 2 years with fine of Rs.500/- and in default, to

suffer R.I. for 3 months.

(iv) Accused Nos. 1 to 3 are also convicted for the offences punishable

under section 324 r/w. 34 of Indian Penal Code and are sentenced to

suffer R.I. for 1 year and to pay of Rs.250/- each, in default, to suffer

R.I for 1 month.

11. Appeal is partly allowed.

          (MRIDULA BHATKAR, J.)                                    (V.K. TAHILRAMANI, J.)