Bombay High Court
Bharat Raju Lokhande vs The State Of Maharashtra on 2 March, 2016
Bench: A.M. Thipsay
901-APPEAL-1295-2013-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1295 OF 2013
BHARAT RAJU LOKHANDE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Shri Kaushik Mhatre, Advocate for the Appellant.
Shri V.B.KondeDeshmukh, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 2nd MARCH 2016.
ORAL JUDGMENT :
1 This appeal is directed against the judgment and order
dated 21st November 2013 delivered by the Ad-hoc Additional
Sessions Judge for the Greater Bombay, in Sessions Case No.244
of 2012, convicting the appellant who was the sole accused in the
said case, of offences punishable under Section 307 of the Indian
Penal Code (IPC) and Section 135 of the Bombay Police Act (now
Maharashtra Police Act) read with Section 37(i)(a) thereof. The
learned Ad-hoc Additional Sessions Judge sentenced the appellant
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to suffer Rigorous Imprisonment for 10 years and to pay a fine of
Rs.10,000/-, in default, to suffer Simple Imprisonment for 4
months, with respect to the offence punishable under Section 307
of the IPC and to suffer Rigorous Imprisonment for 1 year with
respect to the offence punishable under Section 135 of the
Maharashtra Police Act. The learned Ad-hoc Additional Sessions
Judge directed that the substantive sentences would run
concurrently.
2 The prosecution case, as put forth before the trial
court, may in brief, be stated thus :
The appellant and one Sachin Surve (PW3) - the
victim - used to reside in the same locality and knew each other
well. There was enmity between them. As a result of this enmity,
on 4th December 2011, at about 2.30 p.m., the appellant assaulted
the said Sachin Surve (PW3) by a knife, giving a blow in the
abdoment of Sachin Surve. The blade of the knife remained
inside the body of Sachin Surve, which was taken out after
performing a surgery. The assault on Sachin Surve was witnessed
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by his sister - Suvarna Surve (PW1), who happened to be present
there. When Suvarna raised cries, her mother Vandana Surve
(PW2), who was in her house (near which the assault took place),
came out and saw the appellant running away from the scene of
offence. Suvarna lodged a report with the police which was
treated as First Information Report (FIR) at Exhibit 11. Sachin
Surve was taken to Rajawadi hospital, where he was admitted for
about nine days. The appellant came to be arrested on 10 th
December 2011. In the course of investigation, blood stained
clothes, which Sachin was allegedly wearing at the time of the
incident, were recovered. The part of the knife that had remained
in the body of Sachin Surve, which had been taken out by
performing surgery, was also handed over by the Medical Officer
attached to Rajawadi hospital, to the police.
3 On completion of investigation, charge-sheet was filed
against the appellant alleging commission of the offence
punishable under Section 307 of the IPC, who was tried, convicted
and sentenced, as aforesaid.
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4 I have heard Shri Kaushik Mhatre, the learned counsel
for the appellant. I have heard Shri V.B.KondeDeshmukh, the
learned APP for the State. With their assistance, I have gone
through the entire evidence adduced during the trial. I have also
gone through the impugned judgment.
The prosecution examined totally eleven witnesses
during the trial. The first is Suvarna Surve, sister of Sachin Surve
- the victim - and an eye witness. The second is Vandana Surve,
mother of Sachin Surve, who appeared on the scene of offence,
immediately after the incident had taken place. The third witness
is the victim Sachin Surve himself. The fourth witness Dr.Deepak
Patel, a Medical Officer, attached to Rajawadi hospital, is the one
who had treated Sachin Surve on his admission into the said
hospital on 4th December 2011. The fifth witness Maruti Patil,
A.S.I, attached to Pant Nagar Police Station at the material time, is
the one who had promulgated the prohibitory orders as
contemplated under Section 37 of the Maharashtra Police Act.
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The sixth witness Santosh Chavan is a Police Naik, who had taken
charge of the blood stained clothes of Sachin from Rajawadi
hospital. The seventh witness Ramjai Shukla is a panch in respect
of the alleged disclosure statement made by the appellant,
pursuant to which, the handle of the knife which was used for
assaulting and the clothes of the appellant were recovered under a
composite panchnama (Exhibit 21 and Exhibit 22) on 13 th
December 2011. The eighth witness Balu Solat, Assistant Police
Inspector, attached to Pant nagar Police Station at the material
time, is the one, who had received information in respect of the
offence and had registered the FIR. He had also also carried out
certain further investigation into the matter such as proceeding to
the spot, seizing the clothes of the injured Sachin Surve under a
panchnama (Exhibit 25) etc. The ninth witness Sachin Khandekar
is a panch in respect of the seizure of the clothes of the victim.
The tenth witness is Navnath Gopale, who was supposed to be an
eye witness to the incident, did not support the case of the
prosecution and was declared hostile. The eleventh witness Vilas
Jadhav, Inspector of Police, attached to Pant Nagar Police Station
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at the material time, is the one who completed investigation and
filed charge-sheet against the appellant.
6 The appellant adduced defence evidence by examining
himself as a witness.
7 A number of contentions are raised by the learned
counsel for the appellant. He submitted that the appellant was
not ably defended at the initial stage of the trial, and that, though
he was provided with legal aid, there had been no satisfactory
cross-examination of the prosecution witnesses on material
aspects. He also submitted that the injured himself was having
past criminal record, and that, the injured was an accused in a
case of assault on the brother of the appellant, which case was
also in respect of an offence punishable under Section 307 of the
IPC, and that, the same is still pending. It is also contended that
the evidence indicated that the appellant had been externed from
the area of BrihanMumbai and Thane, and that, he had returned
to Mumbai by committing breach of the externment order. It is
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submitted that the defence of the appellant that apprehending
some assault from the victim, he had given a push to him, as a
result of which the victim had fallen down, and was got injured
with the knife which the victim himself was having, was probable.
It is submitted that, in any case, considering the character and
antecedents of the victim, the sentence imposed by the trial court
upon the appellant is too harsh and needs to be interfered with.
8 After carefully going through the evidence of the
victim Sachin Surve (PW3), the evidence of Suvarna (PW1), and
Vandana Surve (PW2), I do not find any reason to doubt that the
incident, as alleged, has indeed taken place. I have taken into
consideration the defence of the appellant that the injury had
been caused to the victim accidentally while the victim was
pushed by the appellant for defending himself against a possible
attack. I am, however, unable to accept such a theory, keeping in
mind that there were no injuries on any other part of the body of
the victim indicating or suggesting a fall. Secondly, the injury
appears to be sufficiently deep to rule out the possibility of the
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same having been accidentally caused. In my opinion, therefore,
that at the given time and place, the appellant indeed assaulted
the victim with a knife by giving a blow to the victim in his
abdomen, cannot be doubted or disputed.
9 There would be some difficulty in considering whether
the offence that has been committed by the appellant would be
one falling under the penal provisions of Section 307 of the IPC or
would amount to a lesser offence. It is because, there is no
satisfactory medical evidence with respect to the nature and
seriousness of the injury. Nevertheless, there appears to be enmity
between the appellant and the victim; and as a matter of fact, that
they were on inimical terms is an admitted position. Vandana
(PW2) has attempted to build the theory of the intention of the
appellant being that of causing the death of the victim, on the
basis that 'on a previous occasion, when Vandana had gone to the
court in connection with the case in which the victim Sachin is an
accused, the appellant had said to her that he would not spare
Sachin, and that, he would beat him by coming to his (Sachin's)
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area.' However, it is difficult to place much reliance on this
evidence, in as much as, the same was not reported to the police
at the time when it allegedly took place. Though this incident is
said to have taken place in the court campus, no steps to bring this
to the notice of the court, were taken. Moreover, the utterances
attributed to the appellant, even if accepted as true just for the
sake of arguments, do not disclose an intention to attack the
victim Sachin for the purpose of killing him. As such, not much
assistance is derived from this evidence to ascertain the motive
behind the attack.
10 Nevertheless, the injury had been caused on a vital
part of the body. The weapon is a sharp edged weapon. Though
only one blow was given, it cannot be speculated as to whether
the appellant indeed wanted to give only one blow, as the knife
got stuck in the body of the victim. It could not be pulled out as
the handle got separated. Therefore, that only one blow was
given, is not a conclusive factor in favour of the appellant.
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11 In these circumstances, the evidence of Dr.Deepak
Patel, which has not been seriously challenged, assumes
importance. In his evidence, he has stated that the injury was on
a vital part of the body, that it was serious, and that, in the
ordinary course, the death of the patient was possible due to such
type of injury. Since this opinion of the doctor has not been
challenged in his cross-examination, I see no reason to disregard
it. As such, it has to be held that, had death been caused by the
blow given by the appellant to the victim, the offence would be
that of murder which is punishable under Section 302 of the IPC.
It, therefore, follows that, the conclusion arrived at by the trial
court, that the appellant is guilty of an offence punishable under
Section 307 of the IPC, cannot be faulted with.
12 In view of the fact that the evidence of the victim
Sachin Surve (PW3), Suvarna (PW1), and Vandana (PW2) is
sufficient to prove that the alleged guilty act was indeed
committed by the appellant, it is not necessary to discuss the other
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evidence in depth, except observing that the same corroborates
the theory of prosecution.
13 One aspect of the matter, however, needs to be
seriously considered, and that is, whether the sentence imposed
upon the appellant needs to be interfered with. Indeed, in this
case, the victim himself is having a criminal record. A.P.I.Balu
Solat has categorically admitted in his evidence that there were
many criminal cases pending against the victim Sachin Surve, and
that, he was a habitual criminal. He also admitted that Sachin
Surve had been externed from the city of Mumbai. It is also a fact
that a case in respect of an assault on Yogesh, brother of the
appellant, is pending against the victim Sachin Surve, and that,
that case also relates to an offence punishable under Section 307
of the IPC. In these circumstances, it is to be appreciated that the
appellant must be entertaining a fear or apprehension of being
attacked or assaulted by the victim and the fact of having such
belief or fear in mind, might have resulted in his attacking the
victim.
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14 Though the victim was said to have been externed
from the areas of BrihanMumbai and Thane, the evidence on
record does not show whether at the material time, the appellant
had been so externed, and whether he had committed any breach of
the externment order by returning to Mumbai. Though such a
submission was made by the learned counsel for the appellant, I
do not find any evidence to support the same, and all that can be
read into evidence is that at some point of time, the victim had been
externed from BrihanMumbai and Thane.
15 Considering all the relevant aspects of the matter,
including the circumstances in which the offence came to be
committed, as also the antecedents and character of the victim, I
am of the opinion that the sentence imposed by the learned Ad-
hoc Additional Sessions Judge with respect to the offence
punishable under Section 307 of the IPC, ought to be reduced. At
the same time, I am of the opinion that the victim Sachin Surve
should be awarded suitable compensation for the pain and
sufferings undergone by him due to the assault.
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16 In the result, the order of conviction of the appellant in
respect of the offence punishable under Section 307 of the IPC
and the offence punishable under Section 135 of the Maharashtra
Police Act, is maintained. However, the substantive sentence
imposed in respect of the offence punishable under Section 307 of
the IPC is reduced to Rigorous Imprisonment for 7 years. The
sentence of fine is, however, enhanced to Rs.25,000/-. In default
of payment of fine, the appellant shall undergo Rigorous
Imprisonment for 6 months.
17 If the fine is realized, an amount of Rs.20,000/-
therefrom be given to the victim Sachin Surve as compensation.
18 If the appellant has already paid the amount of fine of
Rs.1,000/- in respect of the offence punishable under Section 307
of the IPC, it be adjusted and set off against the amount of fine
that he would be required to deposit by virtue of this order.
19 Subject to this reduction in the substantive sentence,
and enhancement of the sentence of fine, the appeal is dismissed.
(ABHAY M. THIPSAY, J.)
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