Ravi Narsappa Mehtre And Anr vs The State Of Maharashtra
2017 Latest Caselaw 6433 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO.13 OF 2012

    Ravi Narsappa Mehtre & Anr.                                  ... Appellants
               versus
    State of Maharashtra                                         ... Respondent
                                          .......

    •       Mr.Niranjan Mundargi, Advocate for the Appellants.
    •       Mr.H.J.Dedhia, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  10th AUGUST, 2017
                            PRONOUNCED ON :  22nd AUGUST, 2017

    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. The present appeal is filed by Ravi Narsappa Mehtre

and one Rajiv @ Abbas Rafiulla Shah challenging the judgment

and order dated 29/11/2011 passed by the Extra Joint Ad-Hoc

Additional Sessions Judge, Sewree, Mumbai, in Sessions Case

No.689/09. The Appellants were accused Nos.1 and 2

respectively in the said case. Besides the present Appellants,

there were two more accused i.e. accused No.3 Nagesh @ Nagya

Narsappa Badoor and accused No.4 Sachin Sunil Trimukhe. The

accused No.3 was acquitted from all the charges framed against

Nesarikar

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him. The accused No.4 was convicted for the offence punishable

u/s 323 r/w 34 of the Indian Penal Code and was sentenced to

suffer rigorous imprisonment for one year and to pay a fine of

Rs.15,000/- and in default of payment to suffer rigorous

imprisonment for four months. The said accused No.4 Sachin

Trimukhe has not preferred any appeal. The present Appellants

were both convicted for commission of offence punishable u/s

302 r/w 34 of the Indian Penal Code and they were sentenced to

suffer imprisonment for life and to pay a fine of Rs.20,000/-

each and in default of payment of fine to suffer rigorous

imprisonment for one year each. The Appellants and co-accused

were charged u/s 452 r/w 34 of IPC and all of them were

acquitted of the said charge. By way of the present appeal, the

Appellants have challenged the said judgment and order of

conviction and sentence passed by the trial Judge on 29/11/2011.

2. Both the Appellants were facing the charge of

commission of murder of one Miraj Khan. The incident had

occurred on 12/07/2009 between 05.45 p.m. to 06.05 p.m. in

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front of New Fashion Saloon, Dharavi, Mumbai. During the

incident one Nitin Jaiswar had suffered injuries on his nose and

therefore the accused faced the charge u/s 323 r/w 34 of the

Indian Penal Code.

3. The FIR in the present case was lodged by one Haider

Ali Wakeel Ali Ansari, who was working as Barber in the New

Fashion saloon. P.W.2 Haider Ali was acquainted with deceased

Miraj Khan and injured Nitin Jaiswar as well as with all the

accused. According to him, on 12/07/2009, at around 05.45

p.m., the deceased Miraj Khan and Nitin Jaiswar came to his

shop for having a shave. At around the same time all the

accused came to his shop under the influence of liquor. P.W.2

has deposed that, while the Appellant No.2 Rajiv @ Abbas

Rafiulla Shah was chewing Gutkha, some of it was sprinkled on

the face of Miraj Khan. When Miraj Khan asked the Appellant to

be careful, the Appellant No.2 started abusing him and there

was exchange of words between Miraj Khan and Nitin Jaiswar

on one hand and all the accused on the other. The accused No.4

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Sachin Sunil Trimukhe gave fist blow on Nitin Jaiswar's nose,

due to which he suffered bleeding injury and Nitin Jaiswar went

away from the shop. All the accused and Miraj Khan at that

point were outside the shop. Both Appellants entered the shop

again. The Appellant No.1 picked up a scissor and the Appellant

No.2 picked up a razor from the shop. The Appellant No.2

threatened the said Miraj Khan by saying that he would not

leave him alive. At that stage, the Appellant No.1 stabbed Miraj

Khan on the stomach and the Appellant No.2 assaulted him on

the neck causing bleeding injuries and thereafter all the accused

ran away from the spot. Miraj Khan walked with difficulty upto

one Dinesh Kiran Stores, which was located in another lane and

collapsed in front of it. Thereafter Nitin Jaiswar and Miraj

Khan's Uncle Naimuddin shifted him to Sion Hospital, where

Miraj Khan succumbed to his injuries. The police were informed

and they came to the saloon. The P.W.2 gave his statement,

which was treated as FIR and offence was registered vide

C.R.No.221/09 at 07.25 p.m. on 12/07/2009 itself u/s 302,

323, 452 r/w 34 of the Indian Penal Code.

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4. After registration of FIR the investigation was carried

out, different pachanamas were drawn, the accused were

arrested and weapons were seized at the instance of the present

Appellants and after completion of investigation, the charge-

sheet was filed and the case was committed to the Court of

Sessions. On the conclusion of trial, the Appellants were

convicted and sentenced as mentioned before.

5. We have heard the learned counsel Mr.Niranjan

Mundargi, for the Appellants and the learned APP Mr.H.J. Dedia

for the State.

6. During the trial, the prosecution examined 15

witnesses. The defence examined two defence witnesses, but

they were not concerning the present Appellants and therefore

we are not referring to their evidence.

7. The prosecution heavily relied on the evidence of

P.W.2 Haider Ali Wakeel Ali Ansari and P.W.4 Nitinkumar

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Munnilal Jaiswar. Out of those two P.W.5 Nitin Jaiswar was an

injured eyewitness. The P.W.2 Haider Ali was the first informant

and has deposed about the incident as mentioned hereinabove.

The said witness has identified the weapons before the Court as

being the same weapons, which were used by the Appellants.

8. The learned counsel Mr.Mundargi has invited our

attention to the cross-examination of the said witness. In

paragraph No.12 of his cross examination he has stated that, in

his presence the police seized razor and scissor lying at the spot

of incident. Mr.Mundargi submitted that according to

prosecution case, the weapons were not seized from the spot,

but were recovered at the instance of Appellants after a few days

and therefore it cannot be inferred that P.W.2 is a truthful and

reliable witness. Mr.Mundargi also invited our attention to

paragraph No.14 of his cross-examination, wherein the said

witness has categorically admitted that before his evidence was

recorded by the Court on 04/09/2010, his statement was read

over to him by the police at the police station and that he was

instructed to give evidence as per the said statement and he was

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also instructed to identify weapons before the Court and that he

was deposing according to such instructions. This admission

undoubtedly is a very serious matter and if it is true, he can be

termed as a tutored witness. In cases of such nature, the trial

Court can direct enquiry and take suitable action. In response to

this submission, the learned APP Mr.Dedhia, submitted that the

examination-in-chief of the said witness was over on

04/09/2010 and his cross-examination was conducted on

16/11/2010 and at that time some admissions favouring the

accused were given by the said witness, indicating that the said

witness was won over. We deprecate this practice of keeping so

much gap between the examination-in-chief and the cross-

examination. Once the sessions case has begun and particularly

when a witness is deposing before the Court, then the trial Court

should make efforts to conduct the sessions case on day to day

basis and at any rate it is highly desirable that the evidence of

one witness is completed within a short span of time.

9. In this case, we are not giving so much importance to

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this admission for the reason that the accused/Appellants have

not carried this admission to its logical end and have not

confronted the investigating officer in respect of such admission.

Therefore at this stage it is difficult to record a finding as to

whether really such incident of tutoring had taken place or

whether such witness was won over. Similarly we are also not

giving much importance to any admission that the weapons

were seized from the spot, because otherwise we find that this

witness is a natural and reliable witness and has promptly given

his statement before the police which was treated as FIR. In the

said FIR there is no mention of such seizure of weapons from the

spot. The FIR was lodged immediately at 07.25 p.m. i.e. within

less than two hours from the occurrence. The incident had taken

place near his Barber shop. The spot of incident panchanama

corroborates his version in respect of said incident.

10. Mr.Mundergi further criticized his evidence on the

ground that though the said Dinesh Kirana Stores was not visible

from his Barber shop, he has deposed that, the deceased fell

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down in front of Dinesh Kirana Stores. We do not find this part

of his evidence of much importance, because the fact remains,

which is proved by the other circumstances; that Miraj Khan had

walked upto the said Dinesh Kirana Stores and had fallen down

there.

11. The P.W.2 is corroborated in material particulars by

P.W.5 Nitin Jaiswar, who himself had suffered injury in the

incident. The P.W.5 Nitin Jaiswar has deposed that at around

05.30 p.m. he had gone to the shop of P.W.2 with Miraj Khan

and at that time all the accused came there and there was

exchange of words because the Appellant No.2 was chewing

Gutkha and sprinkled it on Miraj Khan. When he tried to

intervene, the accused No.4 Sachin Trimukhe gave fist blow on

his nose causing bleeding injury and therefore he went a little

distance away and stood there. From there he saw that both

Appellants entered the shop and came out with weapons in their

hands. The Appellant No.1 stabbed Miraj Khan on the stomach

and the Appellant No.2 gave a blow of razor from ear to chest.

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12. P.W.5 Nitin Jaiswar has further deposed that Miraj

Khan walked for some distance and then fell down in a nearby

lane. Thereafter this witness informed Miraj Khan's uncle

Naimuddin Khan (examined as P.W.4) and both of them shifted

Miraj Khan to Sion Hospital, where, on examination Miraj Khan

was declared dead. The P.W.5 has identified the weapons before

the Court. Statement of this witness was recorded by the

Metropolitan Magistrate, 32nd Court, Bandra, Mumbai, on

24/07/2009 u/s 164 of Code of Criminal Procedure, which is

exhibited as Ex.95. Mr.Mundargi invited our attention to the fact

that there was omission in respect of the Appellant No.2

chewing Gutkha and spitting on Miraj Khan. We find that

though there is an omission to that extent in the statement

recorded u/s 164 of Cr.P.C., this fact is not an omission in his

statement recorded by the police u/s 161 of Cr.P.C. In any case

this omission does not go to the root of the matter and he is

consistent in his version in respect of the main incident of

assault by the Appellant with the deadly weapons like scissor

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and razor. This witness has thus materially corroborated the

evidence of the P.W.2.

13. Mr.Mundargi has submitted that there are indications

that the police were not aware about the identity of assailants

and therefore entry in ADR at Sion Hospital mentions that the

unknown persons had assaulted the deceased. In this connection

the person who made entry in the ADR is not examined by the

prosecution. Therefore we are not giving much importance to

the said entry in the ADR which is on record at Ex.98. There is

nothing to suggest that such information was given either by

P.W.2 or by P.W.5 to the police or authorities in the hospital.

14. Mr.Mundargi further invited our attention to the fact

that there were two inquest panchanamas i.e. Ex.55 and Ex.93.

Here again Ex.93 mentions that Miraj Khan was assaulted by

unknown persons. Ex.55 is silent as to who had committed

assault on Miraj Khan. While it is true that both the inquest

panchanamas appeared to have been conducted at the same

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time between 09.15 p.m. to 09.50 p.m. by the same

investigating officer, but there were different panchas for both

the panchanamas. Mr.Mundargi submitted that such procedure

throws doubt on the honesty of investigation. While it is true

that such procedure is highly irregular and there is no

explanation forthcoming; Inquest panchanamas are basically

conducted to note down the injuries on the dead body and the

condition of the dead body. They cannot form a basis on which

any conclusion can be drawn about occurrence of actual incident

and they certainly cannot displace evidence of the eyewitnesses.

15. The prosecution has relied on recovery of the weapons

at the instance of both the Appellants. For the said purpose

prosecution has examined P.W.13 Nasir Nazir Ahmad Shaikh. In

his presence the Appellant No.1 produced a scissor which was

hidden by him between the Pan Shop and public toilet near

Shivaji Vidyalaya. He was also panch for recovery of razor at the

instance of the Appellant No.2 which was recovered from behind

a hut near Shivaji Vidyalaya. The C.A. report shows that the

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scissor was showing presence of human blood of 'B' Group and

razor was stained with human blood and the result for grouping

was in conclusive. We find that this circumstance is also

corroborating piece of evidence in favour of the prosecution.

16. The prosecution has further relied on the seizure of

clothes of the accused for which P.W.10 Kailash Kanti Solanki

was examined as the panch. However, he has not supported the

prosecution case and was declared hostile. In this context the

only evidence available is that of the investigating officer who

says that the clothes of the accused were seized under

panchanama at the police station and such panchanama of

seizure of clothes was proved through him and was taken on

record and marked at Ex.86. The C.A. report shows that the

clothes of both the Appellants showed presence of blood group

'B' which was the blood group of the deceased. Though the

pancha to this seizure of clothes has turned hostile, the

investigating officer has proved the panchanama. But even

without referring to this circumstance we are satisfied that the

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prosecution has sufficiently proved its case, beyond reasonable

doubt.

17. Apart from these witnesses which are referred

hereinabove, the prosecution has examined P.W.1 Jyotiram

Shripati Pawar as the panch for spot panchanama, P.W.3

Rajendra Dukhiram Yadav as the panch for one of the inquest

panchanamas (Ex.55), P.W.4 Naimuddin Abdul Majid Khan,

who was deceased Miraj Khan's uncle and who had carried Miraj

to Sion Hospital, P.W.6 Shrirang Bhau Dalvi, who was the

photographer who had taken photographs at the spot, P.W.7

Nazare Alam Naziruddin Khan, was the brother of the deceased,

P.W.8 Shyamlal Sanairam Jaiswar, was the panch before whom

the clothes of the deceased were seized, P.W.9 Dr.Kuldeep

Prakash Gaikwad who had examined injured P.W.5 and has

proved his injuries, P.W.11 Dr. Anagha Atul Joshi, was

examined to prove the injuries of P.W.5, P.W.14 Kamalakar

Mahadev Fondke, PSI, was the first investigating officer who

had recorded the FIR and inquest panchanamas, P.W.15 Ashok

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Baban Papale, who had conducted the further investigation,

arrested the accused and filed the charge-sheet. All these

witnesses are examined to prove the other circumstances as

referred hereinabove.

18. After appreciating the entire evidence on record we are

satisfied that the evidence of P.W.2 Haider Ali and P.W.5 Nitin

Jaiswar is consistent, cogent and reliable. The prosecution has

sufficiently proved that they were eyewitnesses and we can safely

rely on their evidence. They are further supported by the recovery

of the weapons which show presence of blood of the deceased

on the scissor and human blood on the razor.

19. Mr.Mundargi next submitted that even if the incident

is proved, the offence will not fall within the definition of

murder as provided u/s 300 of the Indian Penal Code. It would

fall within 4th exception provided therein, which reads thus;

"Exception 4 -

Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of

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passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

20. Mr.Mundargi has further submitted that there was no

premeditation in commission of offence. It was committed in a

sudden fight and was committed in the heat of passion upon a

sudden quarrel. He further submitted that the Appellants even

had not taken undue advantage or had not acted in a cruel or

unusual manner and therefore the case would not fall within the

definition of 'murder' as mentioned in section 300 of the Indian

Penal Code.

21. The learned counsel Mr. Mundargi in support of his

submissions relied on the judgment of Pulicherla Nagaraju

Alias Nagaraja Reddy, vs. State of A.P., reported in (2006) 11

Supreme Court Cases 444. In this case the Hon'ble Supreme

Court has discussed various factors guiding the Courts in

determining whether the case falls u/s 302 of 304 of the Indian

Penal Code. It is held that the Courts must ensure that cases u/s

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302 are not converted to one u/s 304 Part I and II and vice

versa. The Hon'ble Supreme Court has given a list of certain

circumstances which can be determining factors in deciding

whether the case falls u/s 300 of the Indian Penal Code.

We find that the ratio in this case does not support the

contention of Mr.Mudargi and in fact cautions the Court while

converting the case from 302 to 304 Part I and II.

22. Mr. Mundargi has further relied on the case of

Sukhbir Singh vs. State of Haryana, reported in (2002) 3

Supreme Court Cases 327. In that case the Hon'ble Supreme

Court has held that the said case fell within the Exception 4 of

section 300 of the Indian Penal Code so far as Appellant therein

was concerned. In the said case, the Hon'ble Supreme Court had

given benefit to the Appellant therein and he was not held

responsible for the injuries caused by others. We find that the

attending circumstances in that case were different from the

present case before us and therefore this case does not support

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the submission of Mr.Mundargi in the present case.

23. Mr.Mundargi has further relied on the case of Ankush

Shivaji Gaikwad vs. State of Maharashtra, reported in

(2013) 6 Supreme Court Cases 770. In that case, the accused

had hit the deceased with iron rod on head without

premeditation in a sudden fight and the deceased had

succumbed to the injuries after four days. In that case, the

deceased had survived for four days. Therefore this case also

does not support Mr.Mundargi in his contention.

24. Mr.Mundargi has further relied on the case of

Surinder Kumar vs. Union Territory, Chandigarh, reported in

(1989) 2 Supreme Court Cases 217. In that case, one of the

prosecution witnesses had taken out a pen knife and the accused

therein had picked up a knife from kitchen and while the

deceased in that case had intervened, in the course of the scuffle

he received three injuries and out of which one on the chest was

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proved to be fatal. This case is distinguishable on facts. Accused

therein had not intended to assault the deceased. The fight was

going on between the accused and another witness in that case

and in the scuffle the deceased had suffered the fatal injury.

Therefore even this case is not applicable in the

present case.

25. Lastly, Mr.Mundargi relied on the case of Mavila

Thamban Nambiar vs. State of Kerala, reported in (2009) 17

Supreme Court Cases 441. In that case, the accused had

inflicted the blow with scissor on the right side of the chest of

the deceased. In that case it was found that the accused had not

acted in an unusual and cruel manner. Moreover, in that case

the action of the accused was not preceded by the threats

showing his intention to commit Therefore, even this case does

not support the contention of Mr.Mundargi that the case would

fall within the exception u/s 300 of the Indian Penal Code.

26. In this connection we can refer to the medical evidence

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in the present case. The prosecution has examined P.W.12

Dr.Rajesh Chandrakant Dere, who had conducted the post

mortem. He mentioned the injuries as under;

(1) Chop wound of size 33 x 9 cm x tissue deep from left mastoid to right anterior chest 5 cm above right nipple with underlining structure cut.

              (2)      Stab   injury   of   size   1   cm   x   0.5   c.m.   in   left
                       hypochordiare region.

On internal examination he found following injuries; Laceration wound to liver of size 2 cm x 0.5 x tissue deep on left lobe of liver on cut section congested.

27. He opined that the injury No.1 was possible by the

razor and injury No.2 was possible by the scissor which was

before the Court. He has given probable cause of death as

"Hemorrhagic shock following chop injury over neck (unnatural)."

Though the said Doctor has restricted his opinion to the chop

injury over neck, we find that even the stab injury has

penetrated upto liver and has caused cut over liver and therefore

we find that even that injury was grievous endangering life. The

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injury caused by razor was having the dimension of 33 cms x 9

cm and was tissue deep. We find that this injury was quite

serious and life threatening. The width of the injury was 9 cms

which was quite wide and length was 33 cms. Thus, we find that

this blow was quite serious and deliberate. From the record it

appears that the blow of razor was given after the Appellant

No.1 had stabbed the deceased on the stomach. The scissor was

having 8 inches long blade and its total length was 14 inches

which shows that even the scissor was long and a deadly

weapon. The P.W.2 has categorically stated that the Appellant

No.2 had threatened to kill the said Miraj Khan. Thereafter both

the Appellants had given these blows one after the other in

quick succession. From this we can come to the conclusion that

though it was a sudden fight, the common intention had

developed at the spot between both the Appellants and their

intention was to commit the murder of said Miraj Khan. It is not

possible to record a finding that offender had not taken undue

advantage or had not acted in a cruel or unusual manner.

Looking at the nature of the injuries, the weapons used and the

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immediately preceding threat given to the deceased coupled

with the helpless condition of the deceased, we find that the

Appellants had taken undue advantage and had acted in a cruel

manner and the case will not fall within the fourth exception to

the definition of murder u/s 300 of the Indian Penal Code. With

the result, we hold that the prosecution has proved its case

beyond reasonable doubt and therefore there is no merit in the

Appeal. Hence the following order:

ORDER

The Appeal is dismissed.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)