Bombay High Court
Arun Namdeorao Korle ( In Jail) vs The State Of Maharashtra Thr. ... on 8 March, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO.317 OF 2013
APPELLANT: Arun S/o Namdeorao Korle, Aged
about 45 years, R/o Chikhali kanhoba,
Tah. Ner, District Yavatmal. (Now in
District Prison at Amravati)
-VERSUS-
RESPONDENT: The State of Maharashtra, Through
Police Station Officer, Police Station
Ner, District Yavatmal.
Shri Rahul Dhande, Advocate (appointed) for the appellant.
Shri M. J. Khan, APP for respondent State.
CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.
DATED: 8TH MARCH, 2016.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
1. The appellant is aggrieved by the judgment and order
dated 2-11-2012 passed in Sessions Trial No.123/2010 by the
learned Additional Sessions Judge, Yavatmal thereby convicting
him for an offence punishable under Section 302 of the Indian
Penal Code. The appellant has been sentenced to suffer life
imprisonment and to pay fine of Rs.2000/- in default of payment
of fine to suffer rigorous imprisonment for three months.
2. The case of the prosecution as can be gathered from
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the material on record is that on 14-8-2010 at about 2 p.m. one
Satish Mohurle was eating chiwda along with Sanjay Gurnule,
Haridas Nagarikar and Gajanan Ghawade. The appellant also
came there and started giving abuses. Satish Mohurle asked the
appellant as to why he was giving abuses on which the appellant
went to his house and brought a knife. He stabbed Satish Mohurle
on the left side of his chest and injured him. The appellant
thereafter threw away the knife and ran away. Said Satish Mohurle
was given some medical treatment after which he was referred to
the Government Medical College at Yavatmal where he was
declared to be dead. The mother of said Satish Mohurle lodged a
report with Police Station Ner on the same day on the basis of
which initially offences under Sections 307 and 504 of the Indian
Penal Code (for short, the Penal Code) came to be registered.
After receiving information of the death of said Satish Mohurle,
the offence punishable under Section 302 of the Penal Code was
also included.
3. After carrying out necessary investigation, a charge-
sheet came to be filed against the appellant for the offences
punishable under Sections 307, 504 and 302 of the Penal Code.
Considering the nature of offences, the case was committed to the
Sessions Court at Yavatmal. Charge-sheet came to be filed against
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the appellant vide Exhibit-33 and as he claimed to be not guilty,
the case proceeded for trial.
4. The prosecution examined about seven witnesses. The
statement of the appellant was recorded under Section 313 of the
Criminal Procedure Code. In his defence, the appellant examined
one witness. After considering the evidence on record, the
appellant was convicted in the manner stated hereinabove. Hence,
this appeal.
ig Shri Rahul Dhande, the learned Counsel for the
appellant submitted that the appellant had been wrongly convicted
for the offence punishable under Section 302 of the Penal Code.
It was submitted that the conviction of the appellant was based on
the sole testimony of PW-2 - Sanjay Gurnule. According to him,
one Haridas Nagarikar who was also stated to be present at the
spot when the alleged incident took place had been examined as a
defence witness and his evidence had not been given due
weightage by the Sessions Court while convicting the appellant.
He submitted that on 15-8-2010, the Investigating Officer had
seized a knife without any handle and some grass stained with
blood from the spot. On the next day, the Investigating Officer
had seized the handle of the knife and the shirt from the house of
the appellant. According to him, there was no evidence on record
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to come to the conclusion that the handle of the knife as seized
was of the same knife that was seized from the spot. According to
him, the deceased was under the influence of liquor and likelihood
of his having a fall on an iron rod resulting in vital injuries was
also possible. It was, therefore, submitted that the conviction of
the appellant based on the sole testimony of PW-2 - Sanjay
Gurnule could not be sustained.
In the alternative, it was submitted that even if the
appellant was found guilty, the punishment could not have been
imposed under Section 302 of the Penal Code. According to him,
there was no premeditation to cause murder of said Satish. There
was a single injury alleged to have been inflicted on the deceased
and, therefore, the punishment deserved to be altered to one
under Section 304 Part-II of the Penal Code.
6. Shri M. J. Khan, the learned Assistant Public
Prosecutor supported the judgment of the trial Court. He
submitted that there was sufficient evidence on record to uphold
the conviction of the appellant. According to him, the report was
lodged by the mother of the deceased immediately after the
incident. The evidence of PW-2 - Sanjay Gurnule who was an eye
witness corroborated the statements made in the report lodged by
the mother of the deceased as well as the statements in the first
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information report. He submitted that the learned Judge of the
trial Court rightly disbelieved the defence witness considering the
discrepancies in the statement of said defence witness that had
been recorded by the police and in his deposition where he had
come up with an altogether different story with a view to support
the accused. The appellant had, in fact, gone to his house for
bringing a knife after which he had inflicted a blow of the said
knife on the chest of the deceased. He, therefore, submitted that
the conviction of the appellant did not call for any interference
whatsoever. He thus, sought for dismissal of the appeal.
7. With the assistance of the learned Counsel for the
parties, we have gone through the entire record of the case. The
mother of the deceased Gopabai was examined as PW-1 vide
Exhibit-42. Said Gopabai had immediately lodged her report at
Exhibit-43 on 14-8-2010. In the said report, it was stated that
when her son along with three others was eating chiwda, the
appellant had given abuses on which her son had asked him as to
why he was giving abuses. On that, the appellant brought a knife
and inflicted a blow on the son of the appellant. Her son was
thereafter given some medical treatment.
The first information report (Exhibit-44) was lodged at
9.35p.m. on 14-8-2010 in which it was stated that the appellant
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had inflicted a blow by a knife on her son Satish due to which he
was seriously injured. Said Satish thereafter succumbed to his
injuries. She has referred to the information given by PW-2 Sanjay
Gurnule. In her cross examination, she has stated that her son
Satish as well as the appellant had consumed liquor.
8. PW-2 Sanjay Gurnule is an eye witness who was
examined below Exhibit-46. He stated that when he along with
the deceased and two others were eating Chiwda, the appellant
had come there and had started abusing them. Said Satish had
asked him as to why he was giving abuses on which the appellant
went to his house and brought a knife with which he struck Satish
on the left side of his chest. He has then stated about the medical
treatment given to said Satish. His statement was also recorded by
the police vide Exhibit-47. There is nothing in his cross
examination so as to discredit his testimony. He admitted that he
did not lodge a report with the Police Station about the incident.
PW-3 is Ramkrushna Sonule who is examined at
Exhibit-48. He was a panch witness when the grass with blood
stains and a knife without handle was seized. He was also a panch
witness when the handle of the knife along with the shirt of the
accused was seized. In his cross examination, it was suggested to
him that there was a wooden pole with height of 3 ft. on which a
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lamp was to be placed. It was suggested that there were iron rods
on both the sides of the pole which suggestion was denied.
9. PW-4 is Dr. Shailendra Dhavane at Exhibit-60 who
conducted the postmortem and submitted the report at Exhibit-61.
It was opined that the cause of death was stab injury to vital
organs. The younger brother of the deceased Subhash Mohurle
was examined vide Exhibit-63 and Dr. Mohd. Sharik Iqbal a
Medical Officer was examined at Exhibit-71. The Investigating
Officer - Shaukatali Abbasali was examined below Exhibit-75. He
had recorded the statements of PW-2 as well as DW-1 along with
others.
10. On behalf of the defence, one Haridas Nagarikar was
examined vide Exhibit-92. He has stated that the deceased had
consumed liquor on said date and while going to his house, he had
fallen on an iron rod resulting in fatal injuries. In his cross
examination, he was confronted with his statement recorded by
the police on 14-8-2010 that the appellant had struck Satish with a
knife but he could not assign any reason as regards the portion
marked 'A' in the said statement.
11. As per the post mortem report at Exhibit 61, the cause
of death has been mentioned as having occurred on account of a
stab injury to vital organs. Though in the cross-examination of
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PW-4 it was suggested that the injury caused to Satish was possible
on account of falling on a pointed weapon, the said witness has
stated that the injury was on account of stabbing. Hence, the death
of Satish has been proved to be homicidal.
12. The report initially lodged by the mother of the
deceased at Exhibit-43 along with the first information report at
Exhibit-44 clearly implicates the appellant as having inflicted a
knife injury on the deceased - Satish. This fact is corroborated by
the deposition of PW-2 - Sanjay Gurnule. His deposition is in line
with his statement that was recorded by the police. This witness
was present at the spot along with the deceased and two others.
There is nothing in his cross examination to discredit his version or
to hold that he had any grudge against the appellant to implicate
him falsely. Merely because he did not lodge a report at the Police
Station would not be a reason to discard his evidence. There is no
reason whatsoever to disbelieve the deposition of PW-2 who was
an eye witness along with DW-1.
On the contrary, the statement of DW-1 Haridas
Nagarikar had also been recorded by the police on 14-8-2010 in
which he had stated that initially the appellant had given abuses
and had thereafter brought a knife and had struck the deceased on
the left side of his chest. In his deposition, however, he has come
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up with a totally contrary story without giving any explanation
with regard to the portion marked 'A' in his statement recorded by
the police.
Hence, the defence as sought to be raised does not
warrant acceptance.
13. The blade of the knife with which Satish was attacked
was seized as per memo at Exhibit-50. This seizure is shown to
have been effected on 15-8-2010 at about 9.15 a.m. The appellant
was arrested on 15-8-2010 at about 3.15 p.m. It is, therefore,
clear that this recovery having been made prior to the arrest of the
appellant cannot be considered to be one under Section 27 of the
Evidence Act. This aspect of the matter has been rightly considered
by the learned Sessions Judge as corroborating the testimony of
PW-2 Sanjay.
In view of all this material on record, the testimony of
PW-2 Sanjay deserves to be accepted as the same inspires
confidence and is also corroborated by the other material on
record. Hence, the finding recorded by the learned Sessions Judge
as regards the guilt of the appellant is liable to be upheld.
14. The next question is with regard to the conviction of
the appellant. The material on record indicates that a single blow
was inflicted upon Satish. There is, however, no evidence on
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record to indicate any premeditation on the part of the appellant
in assaulting the deceased. The incident has occurred in a sudden
fight in the heat of passion and there is no evidence to indicate
that the appellant had taken undue advantage or had acted in a
cruel or unusual manner. The present case, therefore, appears to
be covered by the fourth exception to Section 300 of the Penal
Code. The order of conviction, therefore, deserves to be altered to
one under Section 304 Part-II of the Penal Code and the sentence
of rigorous imprisonment for a period of ten years would serve the
interest of justice.
15. In view of aforesaid, the appeal is partly allowed.
The order of conviction is altered to one under Section
304 Part-II of the Indian Penal Code, and for said offence, the
appellant is sentenced to suffer Rigorous Imprisonment for a
period of ten years. The order regarding fine etc. is maintained.
The judgment of the Sessions Court in Sessions Trial
No.123/2010 dated 2-11-2012 stands modified accordingly.
The fees payable to the learned Counsel appointed for
the appellant are quantified at Rs.5000/-.
JUDGE JUDGE
//MULEY//
