Bombay High Court
The State Of Maharashtra vs Sunil Patil And Ors on 12 December, 2017
Bench: T.V. Nalawade
(1) Cri .Appeal No. 590 of 2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL
NO.
5
90
- 2002
The State of Maharashtra
Through P.I Shani Peth, Police
Station, Jalgaon.
Dist. Jalgaon. ... Appellant.
( Ori. Complainant)
Versus
1. Sunil Vasant Patil,
Age : 26 Years, Occ. Nil,
R/o. Vitthal Borkar's Wada,
Vitthal Peth, Jalgaon.
2. Sunil @ Chinnya Pundalik Tayade,
Age : 23 Years,
R/o. 147, Zilla Peth, Visanji Nagar,
Tayede Galli, Jalgaon
3. Madhur Pitambar Mali,
Age : 19 Years, Occ. Nil
R/o. 444, Vithal Peth,
Baherpura, Jalgaon ... Respondents.
( Ori. Accused)
....
Mr. R.V.Dasalkar,Addl. Public Prosecutor for State.
Mr. Jaydeep Chattarji,Advocate, for Respondent Nos. 1 to 3.
CORAM : T.V. NALAWADE AND
A.M.DHAVALE, JJ.
Date of reserving the Judgment : 07.12.2017
Date of pronouncing the Judgment : 12.12.2017
::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:36:50 :::
(2) Cri .Appeal No. 590 of 2002
JUDGMENT
1. Appeal is filed against the Judgment and order of Sessions Case
No. in Sessions Case No. 227 of 1999 which was pending in the Court
of learned 3rd Additional Sessions Judge, Jalgaon. The Trial Court
has acquitted the present respondents of the offences punishable
under Sections 307 read with 149, 326 read with 149, and Section
147 148 of the Indian Penal Code. The case was filed as against five
persons but the State has filed appeal only against accused Nos. 1 to
3. Both the sides are heard.
In short the facts leading to the institution of the proceedings
can be stated as follows :-
2. The First informant Prashant Kuwar is a resident of Jalgaon
and he is earning his livelihood by selling Tea at Tea stall near Neri
Naka, Jalgaon. In the vicinity of the Tea Stall of Prashant, there is a
Tea Stall which is run by brother of accused No.1 Sunil Patil.( by
Ashok Patil). There was feeling in the mind of the accused No.1 Sunil
Patil that due to Tea stall of Prashant his brother was not getting
customers.
(3) Cri .Appeal No. 590 of 2002
3. The incident took place on 13.02.1999 at about 5.15 p.m.
Prashant was present on the Tea stall and accused No.1 Sunil Patil
came there. Accused No.1 picked up quarrel with Prashant by saying
that due to tea Stall of Prashant, customers were not coming to the
Tea Stall of his brother Ashok. Then all of sudden he took out a knife
and gave blow of knife on left side of abodomen, of Prashant and
second blow was given at the right armpit, on the chest. When Sunil
Patil attempted to give third blow Prashant obstructed it with his left
hand and received an injury on his finger. In the mean time aunt of
Prashant viz Indubai and other persons like younger brother
Mangesh, Kishor Ramkrushna, Mahendra Koli and Devendra rushed
to the spot. They witnessed the incident. After their arrival, Sunil
Patil ran away.
4. Prashant was shifted to the Civil Hospital, Jalgaon where
his report was recorded by the police. On the basis of this report the
crime came to be registered as C.R. No. 6/99 in Shanipeth Police
Station, Jalgaon at 18.45 hours. Supplementary statement of the
Prashant was recorded on the same day and in the supplementary
(4) Cri .Appeal No. 590 of 2002
statement Prashant took the names of remaining five accused, and
attributed some part to them in the incident of assault. He attributed
motive also as against accused Nos. 2 and 3, who are present
respondent Nos. 2 and 3.
5. Statements of persons who were named as witness by
Prashant to the incident came to be recorded. Police prepared spot
panchanama and Sunil Patil came to be arrested. Remaining accused
were also subsequently arrested.
6. One stab wound was found on left hypochondrium in the
middle of size 2 '' x 1 '' going in the abdominal cavity, omentm seen
outside (Omentam is a membramus tissue which supplies blood to
intestine). The second injury was found on right axilla of size 2 and
½ '' x 1 and ½ '' in the middle of axilla and wound of exit was in the
right infra axillally area of size 1/2 '' x 1/4 '' and they were both
internal and external wounds. Both the injuries were caused due to
sharp and cutting object. Blood was found on the spot of offence and
also on the Tea Stall of the first informant.
(5) Cri .Appeal No. 590 of 2002
7. During the course of the investigation, on 18.02.1999,
accused No.1 gave statement to the Police in the presence of panch
witnesses. After that accused No.1 took police and panchas to his
house and the knife was seized from him by drawing a panchnama.
During the investigation article taken from the spot of offence and
also the clothes of Sunil Patil which were taken over during the
investigation came to be sent to the C.A. Office. Blood was detected
on the Banian of accused No.1 Sunil Patil. One injury of abrasion
was also found on the chest of Sunil Patil. Charge sheet came to be
filed against aforesaid five persons. Charge was framed against all
the accused and they pleaded not guilty.
8. Prosecution examined in all 12 witnesses for proving the
offences. The Trial Court has not believed eye witnesses including the
first informant. The Trial Court has considered inconsistencies in the
versions given by the eye witnesses and also improvements made by
the first informant in relation to first report given by him to the Police.
9. Prashant (P.W. No.1) has given evidence that on 13.02.1999 at
(6) Cri .Appeal No. 590 of 2002
about 5 to 5.15 pm when he was present at Tea Stall accused No.1
and 2 came on motor cycle and other accused were in the Auto
Rikshaw. He has given evidence the accused No.1 got down from
motor cycle and picked up quarrel by starting to give abuse to him
and even said that he would kill him on that day. He has given
evidence against the accused No.3 that he handed over knife to the
accused No.1 and gave instigation and after that accused No.1 gave
blow of knife on his abdomen. He has given evidence that his aunt
Indubai who was present there rushed forward and one Gajanan also
came there and they admitted him in the civil Hospital Jalgoan. He
has given reason for the incident as the business rivalry. He has
deposed that Tea stall of accused No.1 was not doing good business
when his Tea stall was doing good business and that was the reason
for the incident. He had produced clothes like Banian and Trouser
before the police and those articles are identified by him. The report
given by him is duly proved at Exh. 33.
10. In the cross-examination of Prashant (P.W. No.1) it is
brought on record that he had not even named accused Nos. 2 to 5 in
(7) Cri .Appeal No. 590 of 2002
the F.I.R at Exh.33. This report was recorded immediately by the
police. Due to omissions which were confronted to the first informant
(P.W. No.1) in Exh.33 there is no corroboration to the substantive
evidence given by the P.W. No.1 as against the accused No.2 to 5 of
Exh. 33.
11. In the evidence of Investigating Officer ( P.W. No.11) it is
brought on record that, supplementary statement was recorded but
the reasons for the same is not given. It can be said that before
recording supplementary statement, statements of the other
witnesses who are mentioned in the F.I.R ought to have been
recorded and if there was inconsistency, he ought to have recorded
supplementary statement of the P.W. No.1. Though statements of
witnesses like Mangesh Kuwar brother of first informant and Kishor
Rane were recorded on 13.2.1999 evidence of the Investigating Officer
shows that there is probability that supplementary statement of first
informant was recorded first.
12. In the cross-examination, Prashant (P.W. No.1) suggestions are
(8) Cri .Appeal No. 590 of 2002
given to the effect that Ashok brother of accused No.1, was running
Tea stall owned by Ravindra Satpute. P.W. No.1 has admitted that
prior to that day he had no quarrel with Ashok. He has admitted
that prior to opening the Tea stall he used to ply Auto rikshaw and
other accused are drivers of the Auto rikshaw and there was
grievance against them that they used to park Auto rikshaw in front
of Tea Stall and that was not liked by the first informant i.e. P.W. No.1.
In any case, the evidence brought on record in the cross-examination
shows that, there was dispute between first informant and the
accused on the ground of business rivalry. The evidence of P.W. No.1
remained unshattered and there is corroboration of contents of the
F.I.R. Exh.33.
13. Kishore Rane ( P.W. No.3) is examined as another eye witness
and he has given evidence that accused Nos. 1 and 3 came on M-80
motor cycle of accused No.2 and they started quarreling. He has tried
to say that the accused No.3 gave knife to accused No.1 and then
accused No.1 beat with knife to first informant in his armpit and
stomach causing bleeding injuries. After seeing this assault he ran
(9) Cri .Appeal No. 590 of 2002
away. This witness was used by the police on panchnama also when
the police when the clothes of P.W. No.1 were seized were by the police
in civil Hospital. Seizure panchnama is at Exh. 38. He acted as
panch witness on the spot panchnama and that panchnama is at
Exh.39. These panchnamas are duly proved in the evidence of P.W.
No.3.
14. Mangesh (P.W. No.4) brother of first informant has given
evidence that accused No.1 and 2 came on M-80 vehicle and accused
No.3 picked up quarrel by saying that P.W. No.1 had become arrogant
and they would kill him. He has also tried to say that accused No.3
handed over knife to accused No.1 and then accused No.1 made
assault by giving blow of abdomen of first informant. Though
Mangesh is real brother he has given evidence that he ran away from
the spot.
15. The complainant Indubai Saindane (P.W. No.7) who was
suggested supposed to give evidence as eye witness turned hostile.
The conduct of Mangesh and Kishor Rane was not natural. Further,
there is no circumstantial check to the evidence given as against the
( 10 ) Cri .Appeal No. 590 of 2002
remaining accused by all the three witnesses.
16. Dinesh Lovhalekar (P.W. No.2) has given evidence that on
13.02.1999 when the police took over the clothes of accused No.1
from his person he acted as panch witnesses and panchnama at
Exh. 35 was drawn in his presence. He has identified the Banian
which was taken over from accused No.1. In the cross-examination
he has specifically stated that Banian was taken from the person of
the accused and after seizure seal was fixed on it by the Police. The
panchnama at Exh. 35 is consistent with oral evidence.
17. There is also evidence of the investigating officer Ramakant
Jawale ( P.W. No.11) on the seizure of this Banian. The panchnama
shows that there were blood stains on the Banian, but there was also
one injury below the neck of the accused No.1 and blood had come
out through this injury. In any case, P.W. No.1 has not given
evidence that he had resisted. Thus there was blood on Banian of the
accused when he came to be arrested immediately after the incident.
( 11 ) Cri .Appeal No. 590 of 2002
18. The prosecution has examined Leeladhar Patil ( P.,W. No.5) to
prove the statement of the accused given under Section 27 of the
Indian Evidence Act. This panch witness turned hostile. But he has
admitted his signature appearing on both memorandum panchnama
and seizure panchnama. The other panch witnesses on this incident
is not examined but evidence of the incident of the recovery of the
weapon by Ramakant Jawale (P.W. No.11), investigating officer. The
memorandum panchnama of the seizure shows that one knife, was
recovered on 18.02.1999 when accused No.1 was arrested on
13.02.1992. The C.A. Report at Exh. 48 shows that no blood was
detected on the knife. Though this circumstance is there when there
is direct evidence, not much importance can be given to the
circumstance like absence of evidence of recovery of weapon used in
the incident.
19. In the spot panchnama at Exh. 39 there is mentioned that
blood was lying on the ground (stone) and also on the tea stall but
the C.A report shows that no blood was found on the stone taken over
from the spot. It appears that articles were sent to the C.A office on
( 12 ) Cri .Appeal No. 590 of 2002
12.05.1999. Though this circumstance is there, this Court holds that
the presence of the blood mentioned in the spot panchnama can be
used in the present matter. The accused persons took defence of total
denial. No probability is created other than the version given by the
P.W, No.11.
20. Dr. Kavita Sontakke ( P.W. No.9) is examined to prove the MLC
prepared by her after examination of the P.W. No.1 on 13.02.1999.
She has given evidence that she has found following two injuries
1) ''He had a stabbed wound on left hypochondrium in the middle
2 '' x 1 '' going in the abdominal cavity, omentm seen outside
(omentam is a membramus tissue which supplies blood to
intestine), bleeding present, caused within 6 hours with sharp
and cutting object. Nature of injury grievous.''
2) ''Through and through wound in right axilla 2 and ½ '' x
1 and ½ '' in the middle of axilla and wound of exit in the right
infra axillally area 1/2 '' x 1/4 '', bleeding present caused within
6 hours with sharp and cutting object, nature- simple. ''
21. The injury certificate is duly proved in evidence of (P.W.9) at
Exh.52. Her evidence shows that injured was admitted in the Civil
( 13 ) Cri .Appeal No. 590 of 2002
Hospital as indoor patient from 13.02.1999 to 27.02.1999. The knife
shown to be recovered was shown to her and she has opined that the
above two injuries can be caused with such knife. She has also given
evidence that injury No.1 is sufficient to cause death and is
dangerous to human life. In the cross-examination, she has given
reasons for aforesaid opinion. In the cross-examination, it is brought
on record that history was given in respect to injury as accused Sunil
Patil had stabbed with knife before half an hour near Neri Naka. She
denied the suggestions that injury No.2 can be caused if person falls
on the ground.
22. Vijaysing Solanki (P.W. No.10) Police Head Constable is
examined to prove that he recorded the report of the first informant in
the civil Hospital at 5.15 p.m It is brought on record that Civil
Hospital is situated at a walking distance of 10 minutes from the
place of incident. Thus the report was given immediately and when
FIR was given there was no room for concoction.
23. Injury certificate in respect of the Sunil is on record at Exh.60
( 14 ) Cri .Appeal No. 590 of 2002
and it shows that there were following injuries :-
1) Abrassion-Linear on Rt Chest-2nd rib Lat to sternum-transverse,
red. 26 cm long.
2) Abrassion (Lt) hand palm at base of thumb 1/2 x 1/2 red. Age
of injury found to be fresh.
24. It was submitted for the accused that no explanation is given
by the first informant about the injury sustained by accused No.1 and
so he cannot be believed. This circumstance cannot be considered in
favour of accused No.1. Accused No.1 had no reason to go to that Tea
stall. Even if it is presumed that two Abrasions were sustained by
accused Sunil Patil in the same incident, it is not possible to infer
that accused No.1 was exercising right of private defence. On the
contrary, the circumstance can be used against the accused No.1 as
they were simple injuries.
25. Thus there is evidence of aforesaid nature as against the
accused No.1. The Trial Court has acquitted accused No.1 also by
giving reason that remaining accused were un-necessarily implicated
( 15 ) Cri .Appeal No. 590 of 2002
in the case. It is true that there is such possibility, but truth is
easily separable in the present matter. Trial Court ought to have
considered F.I.R as the first disclosure made by the first informant
and ought to have considered the evidence of the prosecution. If that
is done then inference is easy that it is accused No.1 who assaulted
first informant at his Tea stall. FIR was given immediately and there
is corroboration of medical evidence to the evidence of the first
informant and there is also circumstantial evidence of the spot
panchnama. Even if the evidence of other witnesses is ignored, there
is sufficient to prove that accused No.1 had gave two blows of knife to
the first informant.
26. The question now arises is as to what offence is
committed by the accused No.1. In the Section 307 of the Indian
Penal Code it is made clear that if the prosecution proves the
intention of the accused to murder and there is overt act, then
accused can be safely convicted for the offence for attempt of murder.
It can be said in the present matter first informant survived
fortunately as blow given on the abdomen did not cause injuries to
( 16 ) Cri .Appeal No. 590 of 2002
internal organs and blow given at armpit did not entere chest. When
person gives two blows of knife like in the present matter it is very
easy to infer that he had intention to finish the first informant. Thus,
if exaggeration of incident is ignored, from the nature of weapon used
and the number of blows given by the accused No.1, inference is
possible that there was intention of murder. Two injuries were also
caused by the accused No.1 to the first informant. Thus the accused
No.1 is liable for conviction for the offence of attempt of murder
punishable under Section 307 of the Indian Penal Code.
27. Respondent Nos. 2 and 3 cannot be convicted as even their
names were not mentioned in the FIR and there is no circumstantial
check to evidence given against them. Apparently, there was reasons
for the first informant to implicate them in the case, for the reasons
already given the falsehood is easily separable. Respondent No.2 and
3 are acquitted by the Trial Court and this court sees no reason to
interfere in the decision given by the trial Court.
28. This court is convicting the respondent No.1 (original accused
( 17 ) Cri .Appeal No. 590 of 2002
No.1) after about 17 years of the incident. At the relevant time
accused No.1 was aged about 26 years. The first informant was also
youngster at the relevant time. Considering the reasons behind the
quarrel, the age of the accused No.1 this Court holds that, sentecing
accused No.1 with imprisonment for three years will be just and
sufficient in the present matter. In the result following order.
ORDER
i). Appeal as against Respondent No.1 Sunil Patil is allowed.
ii). The Judgment and order of acquittal of respondent No.1 for the
offence punishable under section 307 of the Indian Penal Code is
hereby set-aside.
iii). Accused No.1 Sunil Patil stands convicted for the offence
punishable under Section 307 of the Indian penal Code.
iv). The accused No.1 Sunil Patil is sentenced to suffer Rigorous
Imprisonment for three years and to pay fine of Rs. 1,000/-. ( rupees
one thousand only)
v). In default of payment of fine, accused No.1 Sunil Patil is to
further under go Rigorous Imprisonment for one month.
( 18 ) Cri .Appeal No. 590 of 2002
vi). Accused No.1 will be entitled to get set off in respect of the
period for which he was under trial prisoner in the present case.
vii). Accused No.1 is to surrender the bail bonds for under going the
sentence.
viii). The appeal as against accused Nos.2 and 3 stands dismissed.
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
YSK/Cri .Appeal No. 590 of 2002
