Bombay High Court
Babu Gangaram Chandragiri vs The State Of Maharashtra on 23 March, 2017
Bench: A.M. Badar
(904)APPANo.9862015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.986 OF 2015
IN
CRIMINAL APPEAL NO.1094 OF 2015
WITH
CRIMINAL APPEAL NO.1094 OF 2015
Babu Gangaram Chandragiri
Age.25 Years, R/o.Hut No.307,
Dr.Babasaheb Ambedkar Nagar
Zopadpatti, Cuffe Parade,
Mumbai 400 005.
At Convict No.C-5350,
Kolhapur Central Prison,
District Kolhapur, Kalamba,
Maharashtra -416 007. ... Applicant/Appellant
V/s.
The State of Maharashtra,
Through Cuffe Parade Police
Station ... Respondent
.....
Ms.Yogita Deshmukh, Advocate for the Applicant/Appellant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 23rd MARCH 2017.
ORAL JUDGMENT :
1 In this appeal of the year 2015, Criminal Application
bearing No.986 of 2015 came to be listed for hearing. Ms.Yogita
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Deshmukh the learned Advocate appearing for the
applicant/accused extensively argued the application for bail with
reference to entire Record and Proceedings and requested this
Court to dispose of the appeal itself in view of her arguments
which covered merits of prosecution case. Hence, the appeal is
being decided finally after hearing both the parties at sufficient
length of time.
2 By this appeal, the appellant/accused is challenging his
conviction for offence punishable under Sections 307, 385, 386,
504, 323 and 506 of the Indian Penal Code (For short, "the IPC")
and Section 37(i)(a) read with Section 135 of the then Bombay
Police Act (Now Maharashtra Police Act). The appellant is
sentenced to suffer rigorous imprisonment for 10 years on each
count for offence punishable under Sections 307 and 386 of the
IPC, apart of direction regarding payment of fine of Rs.300/- and
in default to further undergo simple imprisonment of three months
on each count. For the offence punishable under Section 385 of
the IPC, he is sentenced to suffer rigorous imprisonment for one
and half years and to pay fine of Rs.300/-, in default to further
undergo simple imprisonment for three months. For the offence
punishable under Section 504 of the IPC, the appellant/accused is
sentenced to suffer rigorous imprisonment for one year and for the
one punishable under Section 323 of the IPC, he is sentenced to
suffer rigorous imprisonment for three months. For offence
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punishable under Section 506 of the IPC, the appellant/accused is
sentenced to suffer rigorous imprisonment for five years. For the
offence punishable under Section 37(1)(a) read with Section 135
of the Bombay Police Act, the appellant/accused is sentenced to
suffer rigorous imprisonment for six months. All substantive
sentence were directed to run concurrently by the learned trial
Court.
3 I have heard Ms.Deshmukh, the learned Advocate
appearing for the appellant/accused. She argued that papers of
medical treatment of injured P.W.No.2 Shabbir at Exh.32 proved
by P.W.No.5 Dr.Mane shows that blood group of Shabbir was
"B+ve", whereas C.A. report shows that the group of blood is "B"
and, therefore, the entire prosecution case is suffering from doubt.
It is further argued that P.W.No.1 Ramchandra had omitted to
state the snatching of the gold chain as well as giving blow by
knife on P.W.No.2 Shabbir. It is further argued that P.W.No.1
Ramchandra is friend of P.W.No.2 Shabbir. He deposed that he
was slapped by the accused in presence of P.W.No.2 Shabbir, but
P.W.No.2 Shabbir does not mention slapping by the
applicant/accused to P.W.No.1 Ramchandra. The evidence of
P.W.No.2 Shabbir shows that description of the knife was not
recorded by police in his statement under Section 161 of the Code
of Criminal Procedure (For short, "the Code"). The learned
Advocate further argued that blood-stained clothes of P.W.No.2-
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Shabbir were not seized by police. It is further argued that
evidence of P.W.No.3 Shekhar Nirmal shows that the motorcycle
on which the injured was carried to hospital was stained with
blood. But that motorcycle was not seized. The statement of
Laman was not recorded by police. According to the learned
Advocate for the appellant/accused, as per version of P.W.No.9
Dr.Mane, injury suffered by P.W.No.2 Shabbir is possible by
several other reasons. The evidence of P.W.No.7 Sushant Varale,
Investigating Officer shows that the injured was taken to
J.J.Hospital and not to Saint George Hospital and in that sense
other witnesses came to be contradicted. The evidence of
Investigating Officer P.W.No.8 Shyam Sonawane shows that
weapon like knife seized in the crime in question is easily available
in the market and, therefore, seized weapon cannot be attributed
to the appellant/accused. The evidence of P.W.No.6 Hiranna
Valmiki - panch witness shows that shirt came to be seized from
the hospital on 30/06/2011, which is after 11 days from the date
of the incident and, therefore, this evidence is also not reliable.
With this, the learned Advocate appearing for the appellant/
accused argued that the prosecution has failed to prove the
offences alleged against the appellant/accused and, therefore, the
appellant/accused is entitled for acquittal.
4 The learned Additional Public Prosecutor submitted
that the prosecution has proved the charges levelled against the
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appellant/accused by bringing on record the clear and cogent
evidence. He argued that evidence of prosecution is reliable and
trustworthy.
5 I have carefully considered the rival submissions and
also perused Record and Proceedings including depositions of
witnesses as well as documentary evidence placed on record by
the prosecution in support of charges levelled against the
appellant/accused.
6 According to the prosecution case, the
appellant/accused had attempted to commit murder of P.W.No.2
Shabbir Kumusadi and in that process also committed several
offences such as extortion by attempting to put P.W.No.1
Ramchandra in fear of death or grievous injury, criminal
intimidation of prosecution witnesses etc. Considering the nature
of charge, case of the prosecution is mainly based on evidence of
injured P.W.No.2 Shabbir Kumusadi, P.W.No.1 Ramchandra as
well as P.W.No.10 Sonu Nirmal, who are eye witnesses to the
assault on P.W.No.2 Shabbir. Therefore, it would be apposite to
consider evidence of P.W.No.1 Ramchandra Mali - the first
informant at the outset. P.W.No.1 Ramchandra Mali has deposed
that at about 6 p.m. on 19/06/2011, he was going to visit
Dr.Modi. At that time, the appellant/accused had intercepted him
and demanded amount of Rs.100/- for giving to a Samosa seller.
P.W.No.1 Ramchandra stated that the appellant/accused had
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whipped out a knife and threatened him for extorting money.
Thereafter, he started chasing a person and as such P.W.No.2 as
stated by him could managed to escape from clutches of the
appellant/accused. He further testified that while undergoing
return journey after visiting the Doctor at about 8.00 p.m. the
appellant/accused was seen by him snatching gold chain of a
person and on seeing P.W.No.1 Ramchandra, he again questioned
P.W.No.1 Ramchandra about non-payment of Rs.100/- and then
slapped P.W.No.1 on his cheek and ear. Then after taking out a
button knife, the appellant/accused threatened P.W.No.1
Ramchandra, who started running away to save his life. At this
juncture, as per version of P.W.No.1 Ramchandra, his friend
P.W.No.2 Shabbir along with two others attempted to rescue him,
but the appellant/accused has assaulted Shabbir with knife on
right rib portion and continue to chase him. P.W.No.1
Ramchandra further deposed that he concealed himself near one
vehicle and P.W.No.2 Shabbir was then taken to the hospital by
two friends on the motorcycle. This witness has lodged report at
Exh.12 on the very same day of the incident, which has resulted in
registration of Crime No.104 of 2011 for the offences punishable
under Sections 307, 384, 386, 388, 323, 504, 506 of the IPC
against the appellant/accused.
7 Even on perusal of evidence of P.W.No.1 Ramchandra
then it is apparent that he has categorically deposed that the
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appellant/accused had given a blow of knife on right rib portion of
P.W.No.2 Shabbir, as such I do not find that this fact is coming on
record by way of omission. The substantive evidence of P.W.No.1
Ramchandra do mentions this fact. The evidence of P.W.No.1
Ramchandra is further gaining corroboration from the FIR lodged
by him with promptitude. True it is that this witness in his FIR has
not mentioned that there was snatching of gold chain by the
appellant/accused, but the omission is only in respect of the type
of article. The FIR shows that the appellant/accused had snatched
some article from some unknown person and that person was
requesting the appellant/accused to return back his article. Even
otherwise, FIR cannot be an encyclopedia of the crime and what is
relevant is already finding its place in FIR lodged by P.W.No.1
Ramchandra. As such, it cannot be said that the evidence of
P.W.No.1 Ramchandra is suffering from omissions or
contradictions.
8 P.W.No.2 Shabbir Haidar Kumusadi is the victim of the
crime in question. This is a case of single accused and single
victim. P.W.No.2 being injured victim of the crime in question, his
evidence carries great weight and as the case is of the sole
accused, there cannot be any possibility of false implication. Let
us see whether evidence of P.W.No.2 Shabbir Haidar is
trustworthy. He is driver of the truck. His version shows that
after parking his truck at about 8.00 p.m. on 19/06/2011, he saw
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altercations between the applicant/accused and P.W.No.1
Ramchandra. P.W.No.2 Shabbir has categorically stated that the
appellant/accused has slapped P.W.No.2 Ramchandra on his cheek
and ear and then had taken out a knife. P.W.No.2 Shabbir further
stated that the appellant/accused started proceeding towards
P.W.No.1 Ramchandra and, therefore, he had gone near P.W.No.1
Ramchandra and the appellant/accused. Then, as stated by
P.W.No.2 Shabbir, the appellant/accused had assaulted him on
right rib portion. Thereafter the appellant/accused has started
chasing P.W.No.1 Ramchandra and he was taken to the hospital
on motorcycle by Sonu and Laman.
9 The evidence of P.W.No.2 Shabbir as such shows that
he had witnessed the incident of slapping the P.W.No.1
Ramchandra by the appellant/accused and as such it cannot be
said that this witness has omitted to state about the incident of
slapping P.W.No.1 Ramchandra by the appellant/accused. This
injured witness has categorically stated that the appellant/accused
is the author of the wound sustained by him. There is nothing in
cross-examination of P.W.No.2 Shabbir to disbelieve his version
regarding assault on him by the appellant/accused. Even if
description of the knife allegedly stated by this witness is not
recorded in his statement under Section 161 of the Code by the
police, this inaction cannot be said to be discrepancy which goes to
the root of the matter. What is relevant is whether it was the
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appellant/accused who had caused wound to P.W.No.2 Shabbir by
means of a knife and whether this act of the appellant/accused
amounts to an attempt on life of P.W.No.2 Shabbir. In this view of
the matter, I do not find any infirmity in evidence of P.W.No.2
Shabbir in order to jettison his version regarding the incident in
question.
10 P.W.No.10 Sonu Nirmal is an eye witness to the
incident in question. His presence on the scene of the occurrence
is coming from the mouth of injured P.W.No.2 Shabbir. It is in
evidence of P.W.No.10 Sonu Nirmal that along with P.W.No.2
Shabbir and one Laman, they were searching for their friend to
load the dumper and at that time, they had witnessed the
appellant/accused slapped the P.W.No.1 Ramchandra Mali. As
per version of P.W.No.10 Sonu Nirmal, then appellant/accused
had taken out a knife and started chasing P.W.No.1 Ramchandra
Mali. This witness along with P.W.No.2 Shabbir and Laman
attempted to rescue P.W.No.1 Mali. As stated by this witness, the
appellant/accused then assaulted P.W.No.2 Shabbir by means of a
knife on right side chest portion of P.W.No.2 Shabbir. This eye
witness account given by P.W.No.10 Sonu Nirmal on the point of
assault by the appellant/accused on injured P.W.No.2 Shabbir and
his testimony is not at all shattered in the cross-examination.
11 P.W.No.1 Ramchandra and P.W.No.2 Shabbir and
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P.W.No.10 Sonu Nirmal have categorically identified the appellant
/accused while in the dock, so also muddemal article No.2 knife -
the weapon of the crime. Availability of such type of weapon in
the market cannot be a criteria to disbelieve the version of these
eye witnesses.
12 P.W.No.9 Dr.Mane, the Medical Officer at Saint George
Hospital, Mumbai had examined P.W.No.2 Shabbir Haidar on
29/06/2011. He had noticed a stab injury of size 3 c.m. x 2 c.m.
muscle deep sustained by P.W.No.2 Shabbir. This Medical Officer
also found that 7th rib of injured P.W.No.2 Shabbir was fractured.
In the report of sonography, P.W.No.9 Dr.Mane has noticed
laceration of liver. This Medical Officer further testified that all
these injuries are attributed to a single stab wound by the knife.
P.W.No.9 Dr.Mane has proved the papers of indoor treatment of
P.W.No.2 Shabbir at the Saint George Hospital, Mumbai. It is thus
clear that evidence of injured P.W.No.2 Shabbir is gaining
corroboration from the medical evidence on record.
13 The learned Advocate appearing for the appellant/
accused has argued that the papers of indoor treatment of
P.W.No.2 Shabbir Haidar (Exh.32) show that blood group of
P.W.No.2 Shabbir is "B+ve", whereas C.A. Report shows existence
of blood of "B" group. This submission is devoid of any substance
because papers of medical treatment are not showing that blood of
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injured P.W.No.2 Shabbir is that of "B" group. Papers of indoor
treatment of P.W.No.2 Shabbir at Saint George Hospital shows
that blood of B+ve group was administered to Shabbir while his
stay at the said hospital. As such, case of the prosecution cannot
be doubted on this count.
14 Though there is seizure of shirt of injured P.W.No.2
Shabbir, on 30/06/2011 vide panchanama at Exh.24 i.e. after
about 11 days from the incident, this cannot be a ground for
disbelieving version of panch witness Hiranna Valmiki. The
seizure was effected from Saint George Hospital, when injured
P.W.No.2 Shabbir was undergoing medical treatment.
15 Evidence of the Investigating Officer shows that seized
knife as well as shirt came to be sent for chemical analysis.
Reports of chemical analysis are at Exh.28 and 29. These reports
show that human blood was found on the seized knife whereas
blood of B group was found on the shirt seized from the P.W.No.2
Shabbir. The scraping seized from the spot of the incident while
conducting the spot panchanama was also having human blood as
seen from chemical analysis report at Exh.29. Blood group of
P.W.No.2 Shabbir is found to be "B" in the report of chemical
analysis at Exh.28. As such forensic evidence also supports the
case of the prosecution.
16 With this evidence, the prosecution has proved that the
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appellant/accused had assaulted injured P.W.No.2 Shabbir Haidar
by means of a knife. Now let us examine whether this offence falls
under Section 307 of the IPC. It is well settled that for committing
the offence punishable under Section 307 of the IPC, causing
injury to the victim is not at all essential. What is material is
intention coupled with an overt act. Intention of the accused can
be gathered from the nature of the weapon used, part of the body
chosen for inflicting the injury, as well as the force with which the
blow was given. In the case in hand, evidence of P.W.No.9
Dr.Mane shows that injury was a stab injury on the right side of
the chest which has not only caused fracture of 7 th rib of the
victim, but has also caused laceration of liver of the victim. It is
seen from his evidence that because of force with which the injury
was given, the blood accumulated in the cavity of the body and
lung functioning came to be reduced. P.W.No.9 Dr.Mane testified
that if prompt medical aid was not provided to P.W.No.2 Shabbir,
he would have died within three to four hours. If all these aspects
are considered, then it cannot be said that the learned trial court
erred in convicting the appellant/accused of the offence
punishable under Section 307 of the IPC. Therefore, I hold that
the prosecution is successful in proving the offence punishable
under Section 307 of the IPC.
17 Now let us examine whether the prosecution is
successful in proving the offence punishable under Section 385 of
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the IPC which relates to putting a person in fear of injury in order
to commit extortion. In the case in hand, evidence of P.W.No.1
Ramchandra categorically shows that the appellant/accused
whipped out a knife and threated him that he would be cut into
pieces if he fails to give an amount of Rs.100/- as demanded by
the appellant/accused. Thereafter also when P.W.No.1
Ramchandra returned to the spot after visiting the Doctor, the
appellant/accused questioned him about non-payment of
Rs.100/-, taken out a knife and started chasing him. This evidence
of P.W.No.1 Ramchandra Mali shows that in order to commit
extortion, the appellant/accused put him in a fear of injury and as
such, the offence punishable under Section 385 is made out by the
prosecution.
18 The appellant/accused is also convicted of the offence
punishable under Section 386 of the IPC. Section 386 of the
Indian Penal Code reads thus :
386. Extortion by putting a person in fear of
death or grievous hurt.--Whoever commits
extortion by putting any person in fear of death or of
grievous hurt to that person or to any other, shall be
punished with imprisonment of either description for
a term which may extend to ten years, and shall also
be liable to fine.
19 Perusal of provisions of Section 386 of the Indian Penal
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Code goes to show that this offence is made out when extortion is
committed by putting any person in the fear of death or grievous
hurt to that person or to any other person. The learned trial Court
has observed on this aspect that the prosecution has proved that
the appellant/accused had put P.W.No.1 Ramchandra Mali and
P.W.No.2 Shabbir in a fear of death or of grievous hurt in order to
commit extortion and further caused grievous hurt to Shabbir and,
therefore, he has committed the offence punishable under Section
386 of the IPC. If we peruse evidence of the prosecution and
particularly that of P.W.No.1 Ramchandra and P.W.No.2 Shabbir
then it is seen that the offence of extortion was not complete. The
appellant/accused had merely attempted to extort the amount of
Rs.100/-. It is not in evidence of P.W.No.1 Ramchandra that he
had paid some amount succumbing to the threat of the
appellant/accused. In this view of the matter, the appellant/
accused cannot be convicted of the offence punishable under
Section 386 of the IPC. That apart, causing wound to P.W.No.2
Shabbir is not relevant in deciding the guilt of the
appellant/accused for this offence.
20 The learned trial Court has also held that the
appellant/accused is guilty of the offence punishable under
Sections 504 and 506 of the IPC. The evidence of prosecution
witnesses namely P.W.No.1 Ramchandra, P.W.No.2 Shabbir as
well as P.W.No.10 Sonu Nirmal shows that the appellant/accused
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had threatened P.W.No.1 Ramchandra by demanding money and
had provoked him. As such provocation was likely to prompt the
prosecution witnesses to breach public peace. That apart, the
prosecution witnesses were criminally intimidated by the
appellant/accused by his conduct as seen from the evidence of
prosecution. Therefore, the learned trial Court has correctly
convicted the appellant/accused for offence punishable under
Sections 504 and 506 of the IPC.
21 The evidence of PW.No.1 Ramchandra Mali that the
applicant/accused has slapped him on his cheek and ear is gaining
corroboration of evidence of P.W.No.2 Shabbir and P.W.No.10
Sonu Nirmal. As such, the offence punishable under Section 323
of the IPC also stands proved.
22 By adducing evidence of P.W.No.4 Vilas Sawant,
police constable, the prosecution has established that the order
issued by the Deputy Commissioner of Police (Operation) Brihan
Mumbai in the local jurisdiction of the Cuffe Parade police station
was duly promulgated and the said order is at Exh.18. By this
order, the Deputy Commissioner of Police (Operation) had
prohibited acts of carrying arms such as swords, spears, knifes,
sticks etc. which are capable of using for causing physical harm
from the period 25/05/2011 to 23/06/2011. This order is
certainly breached by the appellant/accused by carrying the knife,
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which was ultimately seized from him. In this view of the matter,
no fault can be found in his conviction for the offence punishable
under Section 37(i)(a) read with Section 135 of the Bombay
Police Act.
23 Net result of foregoing discussion requires me to hold
that the appeal deserves to be allowed partly and, therefore, the
order :
(i) The appeal is partly allowed.
(ii) Conviction of the appellant/accused and the resultant
sentence imposed on him for the offence punishable
under Section 386 of the IPC is quashed and set aside.
(iii) He is acquitted of the offence punishable under Section
386 of the IPC.
(iv) The fine amount, if any, paid by him in respect of this
offence be refunded to him.
(v) Conviction of the appellant/accused for rest of the
offences and the resultant sentences imposed on him by
the learned trial Court is maintained.
24 In view of disposal of Criminal Appeal No.1094 of
2015, pending Criminal Application No.986 of 2015 stands
disposed of accordingly.
(A.M.BADAR J.)
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