Anish S/O Shikhar Chaware (In ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 4992 Bom

 apeal.376.15,418.15,412.16                      1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR


 1)             CRIMINAL   APPEAL NO. 376 OF 2015

 Sunil S/o Laxmanrao Zape,
 Aged about 23 years,Occ-Labourer,
 R/o Hamalpura,Amravati.
 (Presently in Central Prison,Amravati)                       ..... APPELLANT

       ...V E R S U S...

  The State of Maharashtra, 
 Through Police Station Officer,
 Police Station Chandur Railway,
 Tq.Chandur Railway,
 District-Amravati.                                          ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri J.B.Kasat Advocate for appellant.
 Miss T.H.Udeshi,A.P.P. for State.
 -------------------------------------------------------------------------------------------
 2)             CRIMINAL APPEAL NO.418 OF 2015

 Rahul @ Pappu Shridhar Yadav,
 Aged about 31 years,
 Occupation-Labourer, 
 Resident of Chandur Railway,
 District-Amravati.
 ( In jail)                                                          ..... APPELLANT

       ...V E R S U S...

  
 The State of Maharashtra, 
 Through Police Station Officer,
 Police Station Chandur Railway,
 Tq.Chandur Railway,
 District-Amravati.                                          ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri P.V.Navlani, Advocate for appellant.
 Miss T.H.Udeshi,A.P.P. for State.




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  apeal.376.15,418.15,412.16                      2        

 -------------------------------------------------------------------------------------------
 3)             CRIMINAL   APPEAL NO. 412  OF 2016

 Anish S/o Shikhar Chaware,
 Aged about 25 years,Occ-Labourer,
 R/o Hamalpura,Amravati.
 (Presently in Central Prison,Amravati)                       ..... APPELLANT

       ...V E R S U S...

  The State of Maharashtra, 
 Through Police Station Officer,
 Police Station Chandur Railway,
 Tq.Chandur Railway,
 District-Amravati.                                          ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri J.B.Kasat Advocate for appellant.
 Miss T.H.Udeshi,A.P.P. for State.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- JULY 25 ,2017

ORAL JUDGMENT

These three appeals arise out of the judgment and

order of conviction passed by learned Additional Sessions

Judge,Amravati dated 30/9/2015 in S.T.No.325/2014. Therefore

these three appeals are heard together and they are decided by

this common judgment.

2] Criminal Appeal No.376/2015 is filed by accused no.2

Sunil Laxmanrao Zape, Criminal Appeal No.418/2015 is filed by

accused no.1 Rahul @ Pappu Shridhar Yadao and Criminal Appeal

No.412/2016 is filed by accused no.4 Anish Shikhar Chawre.

These three accused persons were convicted by

judgment and order of conviction for the offence punishable

under Section 307 r/w Section 34 of the Indian Penal Code, and

they are directed to suffer R.I. for 7 years each and to pay fine of

Rs. 2000/- each of them and in default of payment of fine further

to suffer R.I. for three months each.

3] The prosecution case in nutshell, is as under:

Bhanuprasad Keshao Madavi (PW7) was discharging

his duty as Police Inspector at P.S.Chandur Railway, on

14/7/2014. On the said day, Yogesh Devidas Wankhade(PW1)

came to police station and lodged his oral report(Exh.21). On the

basis of said oral report A.S.I.Pinjarkar registered a crime vide

Crimje No.120/2014 under Section 307 r/w Section 34 of the

Indian Penal Code against accused no.1 Rahul @ Pappu Shridhar

Yadao and three unknown persons. The printed F.I.R. is at Exh.22.

After recording of F.I.R.(Exh.22) the investigation of

Crime No.120/2014 was entrusted to P.I.Madavi(PW7).

4] As per oral report(Exh.21), first informant Yogesh

(PW1) works as manager of 'Aditya Beer Bar' situated at Kurha

Road,Chandur Railway. The said bar is owned by Nandu

Haribhau Gawande(PW3).

As per oral report, on 13/6/2014 first informant

Yogesh Wankhade(PW1) was present in bar. So also, bar owner

Nandu(PW3) was present on the counter. At about 10.30 p.m.

after shutting down the beer bar and when the owner was

proceeding towards his motorcycle for going to the house that

time, four persons barged and gave knife and iron rod blows due

to that Nandu fell down on the ground. Out of the assailants first

informant identified Rahul @ Pappu Yadao as one of the

assailants. After attack they ran away towards Kurha.

5] When the investigation was taken up by P.I.Madavi

(PW7) that time injured Nandu was already admitted in hospital

at Amravati. The investigating officer visited the spot of

occurrence on 14/7/2014 at 7'O clock. That time first informant

was with him. He shown the spot and spot panchnama(Exh.30)

was prepared in presence of panch Kishor Pramod Wankhade

(PW2) and others. From the spot investigating officer collected

the simple as well as blood smeared earth and two iron rods

which were found on spot itself.

During the course of investigation, investigating officer

arrested four accused person. After their arrest, their clothes were

seized in presence of Suresh Muhanna Panche(PW4). He proved

the seizure panchnama(Exh.43) which is in respect of clothes of

accused no.1 Rahul @ Pappu Yadao, seizure panchnama in

respect of clothes of accused no.2 Sunil Zape is at Exh.44 and

seizure panchnama in respect of clothes of accused no.4 Anish

Chawre is at Exh.46. The blood of injured Nandu was also seized

in his presence under seizure panchnama(Exh.47).

6] When the accused persons were under police custody

remand accused no.3 Suraj Vilasrao Chawre made his disclosure

statement in presence of Suresh(PW4) and thereby he agreed to

show the place where the weapon used in the crime i.e. knife and

the motorcycle is kept. The admissible portion of his disclosure

statement is at Exh.48. Consequent upon such statement police

party was lead by accused no.3 Suraj to the place which was

house of accused no.1 Rahul @ Pappu Yadao. He went inside the

house and took out the knife which was kept beneath matress and

also shown the motorcycle. The knife was seized and sealed on

the spot itself, by drawing recovery panchnama(Exh.49).

7] Investigating officer also seized the clothes of

Yogesh(PW1) under seizure memo(Exh.23) so also the clothes of

injured Nandu were seized under seizure memo(Exh.24). When

the injured was admitted in the hospital at Nagpur his statement

was recorded by investigating officer in presence of the doctor.

The previous statement of injured is available on record at Exh.34.

The investigating officer also sent all the muddemal

property to the chemical analyser vide C.A.requisition (Exh.59).

The C.A.reports are placed on record. The investigating officer

found that sufficient material is collected against all the accused

persons to sent them to trial. He filed final report under Section

173 of the Code of Criminal Procedure in the learned Court of

J.M.F.Chandur Railway.

8] The learned Additional Sessions Judge,Amravati has

framed charge against all four accused persons for the offence

punishable under Section 307 r/w Section 34 of the Indian Penal

Code. In order to bring home guilt of the accused persons, the

prosecution has examined in all seven witnesses and also relied

upon various documents which were duly proved during the

course of trial.

After a full fledge trial, the learned Trial Court

convicted all four accused persons for the offence punishable

under Section 307 r/w Section 34 of the Indian Penal Code.

Though accused no.3 Suraj Vilasrao Chawre was also

convicted, he chose not to prefer any appeal challenging his

conviction. Thus, only the appeals filed by original accused nos.

1,2 and 4 are placed before Court for final hearing.

9] I heard Shri J.B.Kasat, learned counsel in Criminal

Apeal No.376/2015 and Criminal Appeal No.412/2016. So also, I

heard Shri P.V.Navlani, learned counsel representing Criminal

Appeal No.418/2015. The State is represented in all these three

appeals by learned A.P.P. Miss T.H.Udeshi.

10] The learned counsels vehemently submitted in support

of their respective briefs. They also took me through the entire

evidence brought on record during the course of trial.

11] During trial, the prosecution has examined Dr. Trupti

Budhaji Rathod(PW6). This prosecution witness when was serving

as medical officer at Irwin Hospital,Amravati on 14/7/2014

examined injured Nandu haribhau Gawande at 1.20 a.m. who was

brought in a injured condition. On his examination, following

injuries were found on the person of Nandu.

" Injury No.1:- Stab injury of size 5 x 2 x 5 cm. Entry wound over left lower chest 4 cm.posterior to axillary line.

Injury No.2: Stab injury of size 3x2x5 cm. Entry wound over back 5 cm. Lateral to midline".

Dr. Trupti Rathod (PW6) proved the injury certificate(Exh.55).

12] According to the evidence of Dr.Rathod(PW6) both

injuries were caused within 1 to 1 ½ hour of the examination by

sharp and cutting weapon. Doctor noticed that the general

condition of patient was poor even blood transfusion was required

and it was done. Doctor also found that immediate surgery was

necessary and therefore ,advised the same. According to

Dr.Trupti(PW6) the injuries were found on the vital parts of the

body and could cause the death of patient. Since the condition of

injured was critical therefore, he was referred to Nagpur and he

was admitted at Rahate Hospital at Nagpur.

As per the evidence of Nandu(PW3) he was indoor

patient for one month at Rahate Hospital,Nagpur and surgery was

also required to be performed on him.

From the aforesaid evidence as it is brought on record

which has hardly any challenge from the defence when the doctor

was available for cross-examination there is no hesitation in my

mind to record finding that Nandu(PW3) suffered grievous

injuries, and only by grace of god he survived.

13] The other question that Court is required to answer in

the present appeals is that whether the appellants could be held

responsible for the grievous injuries suffered by Nandu(PW3).

14] According to prosecution, appellants in furtherance of

their common intention assaulted Nandu(PW3) on his vital parts

and caused injuries whereas, the defence of the appellants is that

they are falsely implicated in the crime and the possibility of the

injuries felling on the ground when the injured was in a drunken

condition as it can be seen from the line of cross-examination of

the accused persons during the cross-examination of injured

Nandu(PW3).

15] P.W.3 Nandu was immediately examined by

Dr.Rathod. There is nothing in Dr.Rathod's evidence or in the

medical certificate that at the time of examination of injured,

Dr.Rathod noticed any smell of alcohol emitting from the mouth

of injured. If such was the thing no doctor will miss such aspect.

Hence, in my view the defence as taken by the appellants needs to

be discarded.

16] The first information report(Exh.22) is lodged at 6.35

a.m. on 14/7/2014 at P.S.Chandur Railway. The incident of

assault took place at 10.30 p.m. in the night of 13/7/2014. The

F.I.R.(Exh.22) is lodged by Yogesh(PW1) bar manager of the

injured. The assault took place within his eye sight. It is this

prosecution witness who with the help of others took injured

firstly to Jajoo Hospital and thereafter when it was found that

deterioration in the health of injured he was referred to Irwin

Hospital,Amravati. Naturally, this consumed some time. The first

and foremost action that was expected from Yogesh(PW1) was

to take all possible steps immediately to save the life of injured

Nandu(PW3). Therefore, it appears that in the night itself the

report was not lodged. However, in very early hours of 14/7/2014

i.e. next day the report was lodged. In my view, such report at

6.35 a.m. is immediate report to the police by Yogesh(PW1).

Further, it is not the case of any of the appellant that there was

any delay in lodging the F.I.R.

17] The F.I.R.(Exh.22) discloses only the name of accused

no.1 as Pappu Yadao. There is no dispute that it is a nick name of

the accused no.1 Rahul. The F.I.R.(Exh.22) specifically states that

the first informant was not knowing the other assailants who were

present alongwith accused no.1 Rahul @ Pappu and also

participated in the crime.

According to learned counsel for the appellants no

specific role is ascribed to any of the accused person in the F.I.R.

except the role was attributed to Rahul @ Pappu Yadao that he

gave knife blow.

18] F.I.R. is not a encyclopedia of the prosecution. By

lodging a report with police station officer and if such report

discloses commission of cognizable offence then that empowers

the police authority to investigate into the matter. Thus, F.I.R.

sets criminal law into motion. The F.I.R. is never the last word of

the prosecution rather it is starting point. During the course of

investigation, much other things could reveal to the investigating

officer and the investigating officer then files final report under

Section 173 of the Code of Criminal Procedure. Therefore, merely

because detail role of each and every accused is not detailed in the

F.I.R.(Exh.22) that by itself does not bring the prosecution case in

the clouds of doubt nor it render the prosecution case as

untruthful one.

19] During the course of investigation, investigating officer

Shri Madavi(PW7) gave requisition to Naib Tahsildar Bhanudas

Sukhdeorao Kale(PW5) to hold and conduct test identification

parade. The test identification parade was required to be

conducted in view of the first informant's statement and the

previous statement of the injured(Exh.34) that he only knew

Rahul @ Pappu Yadao by name and others he can identify if they

are shown to him. Consequently, on 2/9/2014 in Central Jail

Amravati test identification parade was held. Yogesh(PW1)

identified accused no.2 Sunil , accused no.4 Anis and accused no.3

Suraj as it could be seen from the documents Exhs. 25 to 28.

Similarly, injured Nandu identified accused Suraj and Sunil.

Though, there is no serious challenge to the procedure

adopted by Bhanudas Sukhadeorao Kale(PW5) for holding test

identification parade faintly it was submitted by learned counsel

for the appellants that different sets of dummies were not made

available at the time of test identification parade.

The test identification parade is not a substantive piece

of evidence. It only helps the investigating officer while

conducting the investigation. In the present case, apart from the

respective accused being identified in test identification parade,

they are specifically identified by Yogesh(PW1) and Nandu(PW3),

injured during the course of trial in the Court. Identification of the

accused persons by the witnesses from the dock is a substantive

piece of evidence therefore, I am not attaching much importance

to the submissions made by the learned counsel for the appellants

in respect of not providing different dummies.

20] As per the evidence of Yogesh(PW1) at the time of

incident accused no.1 Rahul alongwith others came to beer bar

and they demanded fish. However, it was informed to them that

fish is not available and only chicken is available. This aspect is

corroborated by Nandu(PW3) also. As per the evidence of

Yogesh(PW1) and Nandu(PW3) thereafter the assailants left the

beer bar and when Nandu was proceeding towards his

motorcycle that time, he was brutally assaulted. It is also not

claimed by the Yogesh(PW1) that at the time of first assault he

was present outside beer bar. Even his evidence shows that he was

inside the beer bar and when he heard shouts " save save" he

stepped out side beer bar to notice that accused no. 1 Rahul was

inflicting knife blow on the person of injured

21] As per the evidence of Nandu(PW3) when he was

proceeding towards his motorcycle that time one of the accused

gave kick blow when he was on motorcycle resulting into felling

injured on the ground. Thereafter, one of the accused who was

present with Rahul gave knife blow resulting into the bleeding

injury to him and thereafter accused Rahul inflicted knife blow on

abdomen. The version of injured Nandu(PW3) in receiving two

knife blows is corroborated by medical evidence. The injury

certificate (Exh.55) shows existence of two serious and grievous

injuries on the vital parts of body of Nandu.

The cross-examination of these witnesses examined

by the prosecution to bring home guilt of the accused persons

shows that the defence has not even touched core of the

prosecution case in respect of the assault. The entire cross-

examination is in the nature of the suggestions which are all

stoutly denied. On the contrary, in examination in chief of the

injured Nandu (PW3) it is brought on record that prior to two

months of the incident Rahul @ Pappu alongwith his cousin Ravi

Ingle picked up quarrel in front of his beer bar. The said fact was

informed by Nandu to police and therefore Rahul @ Pappu was

nursing grudge against the injured. This particular piece of

evidence which constitutes motive in the prosecution case is not

even touched by the learned counsel during the cross-examination

of Nandu.

22] After the recovery of the knife at the behest of accused

no.3 Suraj the weapon was referred by investigating officer to

Dr.Rathod (PW6) under requisition (Exh.66). Dr. Rathod gave

query report (Exh.56). The said report shows that the weapon

which was sent for examination and caused injuries which

injured Nandu suffered are mentioned in injury certificate

(Exh.55).

23] The investigating officer (PW7) sent all muddemal

property in sealed condition to chemical analyser at Amravati. As

per the C.A.report(Exh.70) blood group of Nandu is found "B".

24] The C.A.report (Exh.71) disclosed stains of human

blood on clothes of accused no.1 Rahul , accused no.2 Sunil and

accused no.4 Anis, so also on the weapon knife. Though the blood

group of Blood noticed on these articles could not be

determined, it is clear that blood was human one and when this

particular incriminating circumstance was brought to the notice of

accused-appellants when they were examined by the learned

judge of the Court below under Section 313 of the Code of

Criminal Procedure they failed to offer any explanation.

Further, the human blood was also noticed on the

clothes of Yogesh(PW1). His clothes were seized during the

course of investigation. That corroborates his version and his

presence on the spot.

25] It is the submission of the learned counsel Shri

J.B.Kasat that only specific attribution of inflicting knife blow is

against Rahul @ Pappu and names of accused no.2 Sunil and

accused no.4 Anish are not take by either Yogesh or Nandu. The

Court is required to read the evidence of prosecution as a whole.

The criminal cases are not decided on reading the prosecution

evidence in bit and pieces. The F.I.R.(Exh.22) specifically states

that four persons assaulted Nandu. Nothing more was expected

from the first informant while lodging F.I.R.

As per the evidence of Nandu one person gave kick

blow on the motorcycle resulting into felling of Nandu on the

ground. His evidence further shows that taking advantage of his

felling down on the ground one of the accused inflicted knife blow

and thereafter Rahul accused no.1 gave knife blow. Thus,

Nandu(PW3) injured has specifically pointed out the participation

of the appellants. It would be useful to refer paragraph no.6 from

the authoritative pronouncement of the Hon'ble Apex Court

reported in Jagan Shravan Patil and another..vs..State of

Maharashtra,2009 ALL MR(Cri)1211(S.C.).

" Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a

substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial ,that there was plan or meeting of mine of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment;but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar..vs..State of Punjab(AIR 1977 SC 109) , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same

or identically similar. The acts may be different in character,but must have been actuated by one and the same common intention in order to attract the provision".

In the present case, not only the evidence of Nandu(PW3) shows

that the actual participation of all the accused persons but also

their presence on the spot is duly proved by the scientific

evidence. There was no reason for these persons to assemble in

front of beer bar of Nandu at such odd hours of night. Rahul @

Pappu was having motive to commit the crime. They jointly

entered in the beer bar and thereafter assault was made though

outside the beer bar. This in my view is one of the indications to

show that the other persons were sharing common intention with

accused no.1 Rahul @ Pappu.

The re-appreciation of the prosecution case leads me to

pass the following order.

ORDER

I) Criminal Appeal nos. 376/2015, 418/2015 and 412/2016 are dismissed.

II) Appellants Sunil Laxmanrao Zape and Anish Shikhar Chaware who are released on bail by this Court. They are directed to surrender to their bail bonds immediately.

III) The learned Additional Sessions Judge,Amravati is directed to take immediate steps to secure the presence of appellants Sunil Lalxmanrao Zape and Anish Shikhar Chaware to serve out remaining jail sentence.

JUDGE

Kitey