Mahadeo Alias Mohan Adkuji Ragit ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 767 Bom

                                           1               APEAL566-13.odt          



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                                   NAGPUR BENCH : NAGPUR




                                                   
                           CRIMINAL APPEAL NO.566/2013
                                       ...


    Mahadeo @ Mohan Adkuji Ragit,




                                                  
    Aged about 35 years,
    Occ: Rickshaw Puller,
    R/o New Kirti Nagar,
    Plot No.40, Narsala Road,
    Near Water Tank,




                                               
    Nagpur.
    (Presently in Central Prison, Nagpur.)
                              ig                  ..             APPELLANT


                                   .. Versus ..
                            
    The State of Maharashtra,
    through Police Station Officer,
    Police Station Hudkeshwar,
      

    Nagpur City, Nagpur.                          ..            RESPONDENT
   



    Mr. A.R. Fule, Advocate for Appellant.
    Mr. J.Y. Ghurde, Additional Public Prosecutor for Respondent.





                                   ....


                  CORAM : B.R. Gavai & A.S. Chandurkar, JJ.

DATED : March 21, 2016.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed by

the learned Additional Sessions Judge-13, Nagpur, in Sessions Trial

No.396/2012 dated 16.09.2013 thereby convicting the appellant for

the offence punishable under Section 302 of the Indian Penal Code

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and sentencing him to suffer imprisonment for life and to pay fine of

Rs.11,000/- and in default of payment of fine to suffer simple

imprisonment for 6 months and also convicting him for the offence

punishable under Section 307 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay fine of

Rs.5,000/- and in default of payment of fine to suffer simple

imprisonment for 6 months, the appellant has approached this

Court.

2.

The prosecution story as could be gathered from the

material placed on record is thus:-

On 19.06.2012 at around 9.30 to 10 in the morning, the

hen of the accused entered into the premises of the first informant

PW4 Nikhil, son of the deceased Ashok. Since it was making the

premises dirty, the mother of the first informant drove away the hen

by throwing the stone. The accused abused the mother of the first

informant. After the said incident, the mother of the first informant

went on the duty. On the same day at about 7 in the evening, the

father of the first informant was bringing back his mother to the

house from the work. When they reached near the house of

Shirbhate, that time the accused assaulted the father of the first

informant by means of stick on the pretext of the quarrel that took

place in the morning. His father telephoned PW4 Nikhil and

informed the incident. PW4 Nikhil was with his friends Nilesh

Sayam, Aditya Lokhande, Bhupendra Sawarkar distributing the

3 APEAL566-13.odt

marriage cards of Nilesh in Prabhat Nagar area. On receipt of the

information, all of them came to the house of the first informant.

His father narrated the incident to them. Hence they decided to go

to the house of the accused for asking the reason of the quarrel. At

about 7.15 p.m. PW4 Nikhil and his other friends viz. Nilesh, Aditya,

Bhupendra, Sagar, Rajesh and Sangam went towards the house of

the accused. The accused was standing in front of his house.

Before PW4 Nikhil and others could make any inquiry with the

accused, he took out a knife and started assaulting on the stomach

of the father of PW4 Nikhil. His friend Bhupendra Sawarkar went to

separate the quarrel. The accused also assaulted on the stomach

and chest of Bhupendra by means of knife causing bleeding injury.

PW5 Nilesh went to catch hold the accused. He was also assaulted

on the stomach and chest. Thereafter the accused also assaulted

PW6 Aditya. The accused also assaulted PW9 Sagar and PW8

Rajesh and thereafter ran away from the spot. Due to the injuries

caused by the accused to Ashok, the father of the first informant

and his friend Bhupendra, they sustained serious bleeding injuries,

fell down on the spot and died. On the basis of the oral report

lodged by PW4 below Exh.28, an first information report came to be

registered bearing Crime No.116/2012 below Exh.29 for the offence

punishable under Sections 302 and 307 of the Indian Penal Code

and 135 of the Bombay Police Act. The investigation was set in

motion. On completion of the investigation, a charge sheet came

to be filed in the Court of the learned Judicial Magistrate First Class,

4 APEAL566-13.odt

Corporation Court No.1, Nagpur. As the offence was exclusively

triable by the Court of Session, the same came to be committed to

the learned Sessions Judge, Nagpur.

3. Charge was framed against the accused on 6.11.2012

below Exh.5. The accused pleaded not guilty and claimed to be

tried. At the conclusion of the trial, the learned trial Judge passed

the order of conviction and sentenced the appellant as aforesaid.

Being aggrieved thereby, the present appeal.

4. Mr. Fule, the learned counsel appearing on behalf of the

appellant submits that the learned trial Judge has grossly erred in

convicting the appellant for the offence punishable under Sections

302 and 307 of the Indian Penal Code. The learned counsel submits

that all the witnesses are interested witnesses inasmuch as PW4

Nikhil is the son of the deceased Ashok and rest of the eyewitnesses

are the close friends of PW4. The learned counsel submits that

though number of independent witnesses were available, the

prosecution has not examined a single one of them. It is further

submitted that the investigation has not been fair and the

prosecution has deliberately not brought the true picture before the

Court. The learned counsel, therefore, submits that the appeal

deserves to be allowed and the order of conviction needs to be set

aside.

5 APEAL566-13.odt

5. The learned APP on the contrary submits that most of the

witnesses are injured witnesses and as such their presence on the

spot is established. It is submitted that merely because the injured

witnesses are friends of PW4 Nikhil, cannot be a ground for

discarding their testimony. It is submitted that the appellant in a

brutal manner has caused the death of two persons and has

assaulted four other witnesses with an intention to cause their

death. The learned APP, therefore, submits that the appeal has no

merit and deserves to be dismissed.

6. With the assistance of the learned counsel for the

appellant so also the learned Additional Public Prosecutor, we have

scrutinised the entire evidence on the record. It is not contested

before us that the death of the deceased is not homicidal and as

such it will not be necessary for us to consider the medical evidence

in that regard.

7. PW4 Nikhil is the son of deceased Ashok. He states that

there was a kaccha compound wall in between his house and the

house of the accused. The wife of the accused used to clean the

clothes by the side of the wall and the dirty water used to flow in

their courtyard. On that count, there used to be dispute between

them. On 19.06.2012 at around 9 a.m. in the morning, the hen of

the accused entered into the courtyard of their house. His mother

threw a stone towards the hen for driving it out of the courtyard. At

6 APEAL566-13.odt

that time accused Mahadeo Ragit gave abuses to his mother. In

order to avoid further quarrel, they returned to their house. His

mother went to duty as usual at 11.30 a.m. His father was on long

leave of one month during that period. His father took his mother

to her duty. In the evening when his mother was returning home

and when she reached near the house of Shirbhate, the accused

Mahadeo was standing on the road in front of his house. His father

had taken his mother from her duty and he was with his mother

near the house of Shirbhate. The accused beat his father by means

of stick on the pretext of quarrel that took place in the morning. At

that time he was distributing the marriage cards of his friend Nilesh

Sayam in Prabhat Nagar. His father telephoned him and told him on

phone that Mahadeo Ragit beat him by means of stick. Aditya

Lokhande, Nilesh Sayam, Bhupendra Sawarkar were also with him.

He returned to his house along with the above said friends. His

father told them that Mahadeo Ragit had beaten him by means of

stick. Therefore, they went to the house of the accused for giving

him understanding for avoiding further quarrel. Rajesh Uike and

Sagar Dahake also came there. Before he could make any inquiry

with the accused, the accused assaulted his father by means of

knife on stomach and chest. When Bhupendra Sawarkar went to

save his father, the accused also assaulted Bhupendra on his

stomach and chest by means of knife. When his friend Aditya

Lokhande went to catch the accused, the accused also assaulted

Aditya by means of knife on his chest. Thereafter Nilesh Sayam

7 APEAL566-13.odt

went to catch the accused and the accused also assaulted Nilesh by

means of knife on his stomach and chest. The accused also

assaulted Sagar Dahake on his chest. The accused also assaulted

Rajesh Uike by means of knife on his back. He made phone call to

Police Station Hudkeshwar. Police came there. His father Ashok

Lanjewar was lying in the courtyard of his house in an injured

condition. Bhupendra Sawarkar was lying in dead condition. The

injured were having bleeding injuries. Five minutes after the death

of Bhupendra, his father also died. He accompanied the Police to

the Police Station Hudkeshwar. Police got his statement typed and

he put his signature on it. It was read over to him. His signature

was also taken on the printed first information report. Thereafter he

returned to his house from the Police Station. He took Nilesh to the

Medical College, returned to the spot and also took Aditya

Lokhande to the Medical College. He has also identified the knife

used in the crime.

8. This witness has been thoroughly cross-examined. No

doubt that there are certain omissions and contradictions which are

brought on record in the evidence of this witness. A suggestion

given to this witness that Bhupendra Sawarkar broke the door of the

house of the accused, is denied by him. He has also denied the

suggestion that since they did not find the accused in front of his

house, they entered into his house by breaking open the door of his

house. He has further admitted that there used to be always

8 APEAL566-13.odt

quarrel with the accused. However, the main incident regarding

assault is concerned, his evidence has remained unshattered.

9. PW5 Nilesh is an injured witness. His evidence is also on

the similar lines as that of PW4 Nikhil. He states that accused

Mahadeo assaulted Ashok Lanjewar by knife on his stomach. Golu

Sawarkar went to save Ashok Lanjewar. However, the accused

Mahadeo assaulted Golu Sawarkar on his stomach and chest by

means of knife. When he went to catch hold the accused from his

behind, the accused assaulted him by knife on his stomach and

chest. The accused assaulted Aditya Lokhande on his chest by

knife. Rajesh Uike and Sagar Dahake came on the spot. When

Rajesh Uike took turn, the accused assaulted Rajesh Uike on his

back. There are minor contradictions and omissions brought on

record in his evidence. He has admitted in his cross-examination

that at the time of the quarrel, surrounding people had gathered

though he has denied that the people in the locality were helping

the accused. He has further admitted that during the above said

incident, PW4 Nikhil Lanjewar did not sustain any injury.

10. PW6 Aditya Lokhande is the other witness. His evidence is

also similar to that of PW4 and PW5. A suggestion given to this

witness that the door of the house of the accused was broken open

by them, is denied. A photograph is placed on record on behalf of

the accused and he is asked as to whether it is the photograph of

9 APEAL566-13.odt

the door of the house of accused. This witness has answered that

he does not know about the same. In his cross-examination, he has

clearly admitted that the accused had no quarrel with himself,

Nilesh, Sagar, Rajesh and Golu Sawarkar. He has also admitted that

he had never any quarrel with the accused.

11. PW8 Rajesh Uike is another injured witness. He has

stated that the accused had assaulted him on his back by knife. He

has also admitted in his cross-examination that he had no quarrel

with the accused. This witness has identified the door in the

photograph of the house of the accused. Same is exhibited as

Exh.41. Though he has stated that he does not know about the

door shown in the photograph is broken, he has denied that

somebody amongst them has broken the door. He has further

stated that he did not pay any attention to the door at the time of

the incident.

12. PW9 Sagar Dahake also deposes on the similar lines. He

states that accused assaulted him by knife on his stomach. He has

admitted in his evidence that towards the end of the incident, about

150 people from the locality had gathered. He has admitted in his

evidence that at the time of the incident there was no quarrel but

they had been to the house of the accused to give him

understanding.

10 APEAL566-13.odt

13. In view of ocular testimony of these five witnesses, we

are of the view that no interference is warranted with the finding

that it is the present appellant who is the author of the crime and

responsible for causing death of Ashok Lanjewar and Bhupendra

Sawarkar and that he is responsible for the injuries sustained by

PW5 Nilesh, PW6 Aditya, PW8 Rajesh and PW9 Sagar.

14. However, the question that requires consideration is as to

whether the offence under Sections 302 and 307 of the Indian Penal

Code is made out or not.

15. From the evidence of these witnesses, a situation that

emerges is thus:

In the morning, there was a quarrel between the

deceased Ashok and the accused. In the evening, when deceased

Ashok and his wife were returning to their home and when they

reached in front of the house of Shirbhate, the accused came there

and assaulted deceased Ashok with the stick. Deceased Ashok

informed about this to his son PW4 Nikhil, who was distributing the

marriage cards for the marriage of PW5 Nilesh along with PW6

Aditya and deceased Bhupendra Sawarkar. All of them came to the

house of PW4. Deceased Ashok told that the accused Mahadeo

Ragit had beaten him by means of stick. All of them decided to give

an understanding to the accused. The accused was standing in the

courtyard of his house. Thereafter PW8 Rajesh and PW9 Sagar

11 APEAL566-13.odt

came running and joined the group of five persons. Before they

could make any inquiry, the accused started assaulting all of them.

Deceased Ashok as well as Bhupendra sustained serious injuries

which caused their death, whereas PW5 Nilesh, PW6 Aditya, PW8

Rajesh and PW9 Sagar sustained injuries. It could thus be seen that

it is not as if the accused who had come to the house of the

deceased, but it is the deceased Ashok Lanjewar and Pw4 Nikhil

who along with his friends had gone to the house of the accused,

wherein PW8 Rajesh and PW9 Sagar also joined them. It could thus

be seen that seven persons had gone to the house of the accused.

According to them they were going to give an understanding. It

could thus be seen that even accepting the prosecution case as it, it

is the two deceased and the five witnesses who had gone to the

house of the accused. It is improbable that seven persons who were

together, were singularly assaulted by the accused, wherein so

many number of injuries were sustained by two deceased and the

four persons. From the cross-examination of these witnesses, it

appears to be the defence of the appellant that the other residents

in the area were also helping the appellant in assaulting these

persons. It has come in the evidence of the witnesses that a large

number of persons had gathered there. The prosecution has

examined the first informant and his friends who are injured

witnesses. In the evidence of PW8 Rajesh, the broken door of the

house of the appellant has been exhibited. It could thus be seen

that the prosecution has withheld the real genesis of the incident.

12 APEAL566-13.odt

16. The possibility of all these witnesses and two deceased

persons going to the house of the accused, not finding him

thereafter breaking open the door and in the said incident the

appellant assaulting the deceased or the other persons also helping

him, cannot be ruled out. The possibility of the deceased Ashok or

the persons accompanying him giving grave and sudden

provocation and the appellant while depriving of the power of self-

control assaulting the persons who had come to his house and

resultantly causing the death of deceased Ashok and Bhupendra

also cannot be ruled out. The possibility of the appellant assaulting

the deceased and the witnesses in the exercise in good faith of the

right of private defence and exceeding his power and assaulting the

deceased and injured persons which led to the death of deceased

persons and causing the injuries to the witnesses, also cannot be

ruled out. The possibility of any sudden fight in the heat of passion

upon a sudden quarrel the incident taking place also cannot be

ruled out. Admittedly even according to the prosecution witnesses,

they had marched towards the house of the appellant and not vice-

versa. As such there could have been no premeditation on the part

of the appellant to either cause the death of the deceased or

attempt to commit murder of injured witnesses. In that view of the

matter, we find that insofar as the death of deceased Ashok and

Bhupendra is concerned, conviction under Section 302 of the Indian

Penal Code would not be tenable. The case would either fit in

Exception 1, 2 or Exception 4 of Section 300 of the Indian Penal

13 APEAL566-13.odt

Code. As such in our considered view, the conviction would rather

be under Part I of Section 304 of the Indian Penal Code. Insofar as

the conviction for an offence under Section 307 of the Indian Penal

Code on account of the injuries sustained by PW5 Nilesh, PW6

Aditya, PW8 Rajesh and PW9 Sagar are concerned, these witnesses

themselves have admitted that there was no quarrel or enmity

between them and the appellant. From the material placed on

record, it appears that in the incident that occurred, these

witnesses have also sustained the injuries.

ig As already discussed

hereinabove, the real genesis of the incident has been suppressed

by the prosecution. There is no material on record to show that

there was intention on the part of the appellant to cause the death

of these injured witnesses. In that view of the matter, we find that

the conviction under Section 307 of the Indian Penal Code would

also not be maintainable and the conviction would be rather under

Section 326 of the Indian Penal Code.

17. In the result, the appeal is partly allowed. The conviction

of the accused for causing the death of deceased Ashok Lanjewar

and deceased Bhupendra Sawarkar is altered to one under Part I of

Section 304 of the Indian Penal Code from Section 302 of the Indian

Penal Code. The appellant/accused is sentenced to suffer rigorous

imprisonment for 7 years for the said offence. However, insofar as

the order with regard to payment of fine is concerned, the same is

maintained.

14 APEAL566-13.odt

18. The conviction of the accused for the offence punishable

under Section 307 of the Indian Penal code is set aside and the

appellant/accused is convicted for the offence punishable under

Section 326 of the Indian Penal Code for causing grievous injuries

by dangerous weapon and sentenced to suffer rigorous

imprisonment for a period of 3 years. However, the order insofar as

fine is concerned, the same is maintained.

19.

The paragraph no.5 of the operative part of the trial

Court's order is set aside and it is directed that all the substantive

sentences shall run concurrently. The paragraph no.6 of the

operative part of the order is maintained.

          (A.S. Chandurkar, J. )                 (B.R. Gavai, J.)





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