Sonu @ Swapnil S/O. Madhao Wakde vs State Of Maharashtra Thr. Pso ...
2017 Latest Caselaw 9820 Bom

                                                       1                                   jg.apeal.160.17.odt



                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                           CRIMINAL APPEAL NO. 160 OF 2017

Sonu @ Swapnil S/o Madhao Wakde
Age : 36 yrs., Occu. :- Agriculturist, 
R/o Talodhi Naik, Tah - Chimur, 
Dist - Chandrapur.  
(In Jail, Chandrapur)                                                                          ... Appellant

          VERSUS

State of Maharashtra, 
PSO Police Station Chimur
(Chandrapur).                                                                                ... Respondent
-------------------------------------------------------------------------------------------------
Shri A. C. Jaltare, Advocate for the appellant
Shri M. K. Pathan, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 05/12/2017.

Date of pronouncing the judgment : 20/12/2017

Judgment (Per : M.G. Giratkar, J)

Appellant has filed the present appeal against the judgment

of conviction passed by learned Additional Sessions Judge, Warora

dated 17-3-2017 in Sessions Case No. 10 of 2014 in which the appellant

is sentenced to suffer rigorous imprisonment for life and to pay fine of

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Rs. 5,000/- in default to suffer rigorous imprisonment for one year for

the offence punishable under Section 302 of the Indian Penal Code.

2. The case of the prosecution against the appellant in short is

as under.

(i) Deceased Suresh Dahikar was Director of District Central Co-

operative Bank, Chandrapur. He was also the Director of A.P.M.C.,

Chimur. He was Member of Gram Panchayat, Talodhi (Naik), Tahsil

Chimur. Previously, he was Sarpanch of the village. In the recent

election, accused and his panel elected to the Gram Panchayat.

Accused/appellant was elected as a Sarpanch.

(ii) On the day of incident i.e. on 12-2-2014, deceased Suresh

Dahikar came to pan kiosk of Randive on his motorcycle. Unloading of

metal of truck was going on on the road. Appellant was standing near

the truck. Appellant went to Gurudeo Square. Deceased Suresh was

saying that due to unloading of metal on road, traffic may jam.

Appellant asked deceased as to who is he asking about it. Then

deceased told that "You are Sarpanch and I am a Member of Gram

Panchayat, hence, I am asking the same." Appellant told deceased that

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he made complaint against him in respect of the contract of the road, he

will see and went to his house.

(iii) Deceased Suresh was telling to Tulshiram Randive, Gautam

Yesambale, Bhagwan Gajbhiye, Ankush Gajbhiye and Kohchade that

previously also, appellant had given threat to him. Appellant came from

his house, talking on mobile phone. He took out knife from his pocket

and gave its blow on the chest of deceased Suresh. When appellant was

giving second blow, deceased tried to resist. The third blow of knife

was given on left arm of deceased. Deceased Suresh fell down from his

vehicle. When Suresh fell down, appellant gave several blows of knife

on his person. Mother of appellant came to the spot and separated the

appellant by catching his hand. Thereafter brother of deceased reached

to the spot. Deceased was taken to the hospital. Medical Officer

declared him dead. Tulshiram Pandurang Dahikar (brother of

deceased) lodged report in Police Station, Chimur. Crime was

registered against the appellant.

(iv) During the investigation, it was revealed that accused no. 2

helped the deceased to ran away from the village. Accused no. 2

Laxman Shende taken the appellant on his motorcycle, therefore, he

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was also made accused.

(v) Initially investigation was carried out by API Nagose. He went

to the spot of incident, prepared spot panchanama, Exhibit 19. He sent

the dead body for postmortem. Thereafter investigation was handed

over to the Local Crime Branch, Chandrapur. Investigating Officer

Shri Tunkalwar started investigation. As per his directions, accused

was arrested by another police officer. After the arrest of appellant,

the appellant gave confessional statement to show knife and shirt.

Appellant produced the knife and shirt. Those were seized.

API Tunkalwar recorded the statements of witnesses, sent seized

property to Chemical Analyser, Nagpur and after complete investigation,

submitted charge-sheet before the Court of Judicial Magistrate First

Class, Chimur. As offence was exclusively triable by the Sessions Court,

therefore, the case was committed to the Court of Sessions at Warora.

(vi) Charge was framed against the accused at Exhibit 16. Same was

readover and explained to the accused. Accused/appellant has denied

the charge and claimed to be tried.

(vii) In order to bring home the guilt of accused, prosecution has

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examined following 19 witnesses.

(1) P.W. 1 Dadarao Vishwanath Samarth (Exhibit 18) (2) P.W. 2 Tulshiram Pandurang Dahikar (Exhibit 19-A) (3) P.W. 3 Sandip Tulshiram Randive (Exhibit 24) (4) P.W. 4 Ajit Pagal Biswas (Exhibit 25) (5) P.W. 5 Suresh Shriramji Bhankar (Exhibit 26) (6) P.W. 6 Deorao Rambhau Kaware (Exhibit 27) (7) P.W. 7 Sudhakar Natthuji Gajbhe (Exhibit 28) (8) P.W. 8 Gautam Pundlik Yesambare (Exhibit 30) (9) P.W. 9 Ankush Shrawan Gajbe (Exhibit 33) (10) P.W. 10 Shankar Ramchandra Gajbe (Exhibit 34) (11) P.W. 11 Prakash Chitru Khandare (Exhibit 36) (12) P.W. 12 Mayur Ravindra Dahikar (Exhibit 37) (13) P.W. 13 Arun Bajirao Dahikar (Exhibit 38) (14) P.W. 14 Amay Mangesh Naik (Exhibit 44) (15) P.W. 15 Najibul Rahman Shakilur Rahman (Exhibit 48) (16) P.W. 16 Ravi Shamrao Nagose (Exhibit 51) (17) P.W. 17 Dr. Samir Devidas Patil (Exhibit 56) (18) P.W. 18 Pranit Suresh Tawade (Exhibit 62) and (19) P.W. 19 Shri Prakash Kawaduji Tunkalwar (Exhibit 67)

(viii) Learned trial Court recorded the statement of appellant and

accused no. 2. There is no material incriminating evidence against the

accused no. 2 Laxman Shende. Appellant in his written statement under

Section 313 of Code of Criminal Procedure stated that deceased was

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aggressor having knife in his hand. There was scuffle and during the

scuffle, deceased might have sustained injuries. In short, the appellant

has raised right of private defence.

(ix) After hearing the prosecution and defence, learned trial Court

came to the conclusion that there is no evidence against accused no. 2,

therefore, he is acquitted for the offences charged against him. Learned

trial Court come to the conclusion that there is material evidence on

record to prove the guilt of appellant for the offence punishable under

Section 302 of the Indian Penal Code, accordingly, learned trial Court

convicted the appellant as stated above.

3. Heard learned counsel Shri A. C. Jaltare for the appellant.

He has submitted that appellant was not aggressor, deceased himself

came with a weapon and started quarrel with the appellant. During the

scuffle, deceased might have sustained injuries. Therefore, appellant

was entitled for use of right of private defence. In order to save himself,

appellant might have caused injuries to the deceased.

4. Learned counsel for the appellant has pointed out evidence

of P.W. 3, P.W. 7 and P.W. 9. Learned counsel has specifically pointed

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out evidence of P.W. 3 and submitted that as per the admission of this

witness, deceased was having knife in his hand. Therefore, it is clear

that deceased himself came with preparation. There was no any

intention on the part of appellant to commit murder of deceased hence

prayed to allow the appeal and give benefit of Exception 3 and 4 of

Section 300 of the Indian Penal Code.

5. Heard learned Additional Public Prosecutor Shri M. K.

Pathan. He has pointed out evidence of P.W. 6, P.W. 8 and P.W. 11. All

they are independent eye witnesses. Their testimonies are in

consonance with each other. Learned Additional Public Prosecutor has

submitted that Dr. Patil conducted postmortem. As per his observation,

14 injuries were found on the dead body, accordingly, he issued

postmortem report, Exhibit 66.

6. Learned Additional Public Prosecutor has submitted that

evidence of P.W. 3, P.W. 7 and P.W. 9 not useful to the appellant

because they are hostile witnesses. Naturally, they supported the

appellant because they were gain-over. Learned Additional Public

Prosecutor pointed out the decisions of Hon'ble Supreme Court in the

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cases of Darshan Singh Vs. State of Punjab [2010 LawSuit(SC) 12]

and Surain Singh Vs. State of Punjab [(2017) 5 SCC 796] .

7. Learned Additional Public Prosecutor has submitted that

deceased was unarmed. He came to pan kiosk. There was altercation

between the appellant and deceased. Appellant went to his house,

brought knife and inflicted several injuries on the person of deceased.

This itself shows that appellant had intention to kill deceased. He

cannot take defence that it was his right of private defence. Nothing

was brought on record to show that deceased was aggressor. At last,

learned Additional Public Prosecutor submitted that the judgment is

perfectly legal and correct and hence, appeal is liable to be dismissed.

8. There is no dispute that deceased died due to homicidal

death. Postmortem report is at Exhibit 66. As per the postmortem

report, 14 injuries were found on the dead body of deceased. P.W. 2

immediately lodged the report in Police Station. It appears from the

cross-examination and argument advanced by the side of appellant that

the injuries were caused by the appellant.

9. It is the only submission by the side of appellant that there

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was scuffle between the appellant and deceased and during the scuffle,

injuries might have caused. It is the argument advanced by the side of

appellant that to save himself, appellant might have caused injuries.

Therefore, his case is covered under the Exception 3 and 4 of Section

300 of Indian Penal Code.

10. Learned counsel for the appellant has submitted that

material information given by Police Patil is suppressed. It is pertinent

to note that evidence on record shows that immediately police went to

the spot of incident. Investigating Officer, P.W. 16 Nagose has admitted

that Police Patil gave information but there is nothing to show that

report was lodged by Police Patil of village and therefore, there is no

question to produce the said report on record.

11. As soon as information was received by the police, they

reached to the spot of incident. API Nagose reached there and

conducted spot panchanama etc. Therefore, there is no substance in the

argument that the report lodged by Police Patil is suppressed by the

prosecution. Moreover, there is no dispute about the incident.

12. Perused the statement of accused under Section 313 of

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Code of Criminal Procedure. Appellant/accused has specifically stated

that there was scuffle between the deceased and appellant and during

the scuffle, injuries might have caused to the deceased. He has stated in

his statement that deceased himself brought the knife.

13. Learned counsel for the appellant pointed out evidence of

hostile witnesses. Learned counsel has submitted that P.W. 3 Sandip

Randive was not declared hostile and therefore, his evidence can be

relied on. It is pertinent to note that evidence of P.W. 3 and P.W. 4

were recorded by the trial Court in absence of learned Additional Public

Prosecutor. It appears that questions were asked to P.W. 3 and P.W. 4

by the Court hence, they were not declared hostile.

14. From the perusal of evidence of Sandip Randive, it is clear

that he was hostile to the prosecution. Hence, he admitted in cross-

examination that deceased was having knife.

15. P. W. 3, P.W. 7 and P.W. 9 are not supported to the

prosecution. They tried to support accused by saying that deceased

was having knife. But none of them have stated that deceased was

aggressor. Their evidence is not useful for defence.

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16. On the other hand, material independent eye witnesses of

the prosecution namely, P.W. 6 Deorao Kaware, P.W. 8 Gautam

Yesambare and P.W. 11 Prakash Khandare specifically stated that at the

time of incident, appellant threatened the deceased saying that he made

his complaint in respect of his contract work. He also threatened to

deceased and went to his house. Appellant brought knife. He was

talking on mobile phone in one hand and was having knife in the pocket

of pant.

17. It is stated by the eye witnesses that appellant gave blow

of knife on the chest of deceased. When second blow was given by the

appellant, deceased tried to resist but he could not resist. Thereafter

deceased fell down from motorcycle, appellant stabbed several times till

his mother reached there. Mother of appellant separated him from the

deceased and taken to house.

18. Hostile witnesses stated in favour of the appellant that the

deceased was having knife and abusing the appellant in filthy language.

Except this evidence, nothing more stated by them. They have not

stated in their evidence that deceased voluntarily caused any injury to

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the appellant. They have not stated what type of abuses were given to

the appellant. They have not stated that deceased was aggressor.

19. Learned counsel for the appellant has pointed out cross-

examination of P.W. 2. He has admitted in his cross-examination that

deceased was stronger than appellant. Therefore, it was impossible for

the appellant to cause any injury to deceased. It is pertinent to note

that if the deceased had any intention, he would have killed the

appellant himself. This itself shows that deceased was sitting on his

motorcycle. He was not expecting any attack by the appellant.

Appellant came from his house and was pretending that he was talking

on mobile. When he reached near the deceased, immediately, he

started stabbing the deceased. The appellant stabbed deceased on his

vital part, therefore, deceased fell down from his motorcycle. Even

thereafter appellant continued stabbing the deceased. All this evidence

show that appellant intentionally and knowingly stabbed the deceased

to commit his murder.

20. Evidence of prosecution is well supported by oral as well as

documentary evidence. Postmortem report corroborates the oral

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evidence. Chemical Analyser's report also shows that blood was found

on the knife and pant of the appellant and also on the clothes of

deceased. Prosecution has proved beyond reasonable doubt that

appellant has committed murder of deceased Suresh Dahikar.

21. In the case of Darshan Singh Vs. State of Punjab (cited

supra) Hon'ble Supreme Court has observed as under.

19. We deem it appropriate to briefly discuss the principle of right of private defence and how the courts have crystallized this principle in some important judgments.

20. Relevant provisions dealing with the right of private defence are sections 96 and 97 of the Indian Penal Code.

"96. Things done in private defence. - Nothing is an offence which is done in the exercise of the right of private defence.

97. Right of private defence of the body and of property. - Every person has a right subject to the restrictions contained in Section 99, to defend--

First.- His own body, and the body of any other person, against any offence affecting the human body;

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Secondly.- The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."

21. Section 100 of the Indian Penal Code is extracted as under:

"100. When the right of private defence of the body extends to causing death. -- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: --

First. -- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly. -- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly. -- An assault with the intention of committing rape;

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Fourthly. -- An assault with the intention of gratifying unnatural lust;

Fifthly. -- An assault with the intention of kidnapping or abducting;

Sixthly. -- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

22. .......

23. It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?

22. It is also observed by the Hon'ble Supreme Court in the

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case of Surain Singh Vs. State of Punjab [(2017) 5 SCC 796] that

to get benefit of exception 4 to Section 300 of the Indian Penal Code,

appellant has to establish that he had no any intention to cause

death. Attack was not premeditated and preplanned. Act of accused

was not cruel and he did not take undue advantage of deceased.

Scuffle took place in the heat of passion and all requirements under

Section 300 Exception 4 is satisfied. Thereafter, accused is entitled to

such benefit.

23. In the present case, it is clear from the evidence on

record that deceased was strong person. If the deceased was

aggressor, then he would have killed the appellant. Evidence on

record shows that appellant went to his house, brought knife and

stabbed the deceased. Deceased was not expecting so, therefore, he

could not resist. He was sitting on motorcycle. Appellant gave blow

of knife on the vital part of his body. The first blow was given on

the chest of deceased. Deceased tried to resist but another blow

was given by the appellant. Deceased fell down. Thereafter also,

appellant stabbed the deceased. As per the postmortem report, 14

injuries were found on the dead body. This itself shows that

17 jg.apeal.160.17.odt

appellant acted in a cruel manner. Appellant was aggressor,

therefore, he is not entitled for the benefit of exception 4 of Section

300 of the Indian Penal Code.

24. From the perusal of the impugned judgment, it is clear

that judgment is well reasoned. Learned trial Court given the

reasoning to each and every point raised by the appellant before the

trial Court. There is no illegality in the impugned judgment. Hence,

we do not find any merit in the appeal. Therefore, we pass the

following order.

ORDER

(i) The appeal is dismissed with no order as to costs.

(ii) R & P be sent back to the trial Court.

                        JUDGE                                        JUDGE


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