Raja @ Raju Kannan Naidu vs The State Of Maharashtra
2017 Latest Caselaw 8072 Bom

                                              1 / 15                    APPEAL-106-10.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.106 OF 2010

    Raja @ Raju Kannan Naidu
    Aged 33 years, Indian Inhabitant,
    residing at Guru Teg Bahadur Nagar,
    Ravali Camp, MHADA Chawl,
    Zopadpatti, Mumbai - 37.
    (At present at Arthur Road 
    Central Prison)                               ... Appellant/ Accused
                versus

    The State of Maharashtra
    (At the instance of 
    Azad Maidan Police Station,
    Vide C.R.No.101/07)                                          ... Respondent

                                          .......

    •       Mr.Sachin B. Chandan, Advocate for the Appellant.
    •       Mr.H.J. Dedhia, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  22nd SEPTEMBER, 2017
                            PRONOUNCED ON :  12th OCTOBER, 2017


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

1. The present Appeal is preferred by the Appellant

challenging the Judgment and Order dated 23/01/2009 passed

by the Additional Sessions Judge, Greater Bombay, in Sessions

Nesarikar

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Case No.599/07, whereby the Appellant was convicted for the

offence punishable u/s 302 r/w 34 of the Indian Penal Code and

was sentenced to suffer rigorous imprisonment for life and was

directed to pay a fine of Rs.1,000/- and in default of payment of

fine to undergo rigorous imprisonment for one year. The

Appellant was also convicted for the offence punishable u/s 324

r/w 34 of IPC and was sentenced to suffer rigorous

imprisonment for two years and to pay a fine of Rs.500/- and in

default of payment of fine to undergo further rigorous

imprisonment for six months. All the substantive sentences were

directed to run concurrently and the Appellant was given benefit

of set off u/s 428 of Cr.P.C. for the period which he was under

trial prisoner.

2. Though the conviction is recorded u/s 302 r/w 34 and

324 r/w 34 of IPC, he was the sole accused and the charges

were framed only u/s 302 and 324 of the Indian Penal Code and

therefore conviction u/s 302 r/w 34 and 324 r/w 34 of IPC was

not proper.

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3. The FIR in this case was lodged on 16/04/2007 vide

C.R.No.101/07 at Azad Maidan Police Station u/s 302 and 324

of IPC by one Deepak Shekhargol at 10.25 a.m. The said Deepak

was the injured eyewitness. According to the prosecution case,

at about 05.45 a.m. to 06.00 a.m. on 16/04/2007, the Appellant

assaulted one Kadar Khan @ Laden with wooden stick and stone

and committed his murder. In the process, he assaulted the said

Deepak as well. The police were informed and Kadar Khan @

Laden was removed to the hospital. He succumbed to his

injuries at about 08.05 a.m. on 16/04/2007 itself. After

registration of the FIR, the spot panchanama was carried out.

The wooden plank and stones were seized from the spot. At

about 03.15 p.m. on the same day, the Appellant was arrested.

His clothes were seized. Statements of various witnesses were

recorded and at the conclusion of the investigation, the charge-

sheet was filed in the Court of the learned Additional Chief

Metropolitan Magistrate, 8th Court, Esplanade, Mumbai.

Thereafter the case was committed to the Court of Sessions and

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was tried as Sessions Case No.599/07 before the learned

Additional Sessions Judge, Greater Mumbai. The Appellant was

the sole accused in the said case. The charges were framed u/s

302 and 324 of IPC.

4. During trial, the prosecution examined 11 witnesses

including the injured first informant, Medical Officer who had

treated the injured Deepak and the deceased, when he was

admitted in the hospital and the Medical Officer who had

conducted the post-mortem examination. The prosecution

further examined the Pancha who was present during the spot

panchanama and another Pancha in whose presence, the

Appellant was arrested and in whose presence, the clothes of the

accused were seized. Rest of the witnesses were related to the

investigation of the offence.

5. The prosecution has mainly relied on the evidence of

eyewitnesses. The first of such eyewitnesses was P.W.1 Bajrangi

Vishwakarma. He has deposed that he was knowing the

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Appellant as well as the deceased. He has deposed that, on

16/04/2007, in the morning, there was an altercation between

the Appellant and the deceased at Azad Maidan. During the

altercation, the Appellant took up a piece of wood and assaulted

Laden on his head and face due to which, Kadar @ Laden fell down

on the ground. One Deepak Shekhargol, who was present nearby,

who tried to intervene, was also assaulted by the Appellant with

the stick on his head. Police were informed telephonically and

they removed the injured to the hospital. This witness had

informed the police by using the mobile phone of one Munna.

6. P.W.2 Hussain Ali Mohd. Ali Shaikh was another

eyewitness who used to sleep at Azad Maidan. According to him

besides him, the other persons were also regularly sleeping at

Azad Maidan. On the day of incident at about 05.30 a.m. to

06.00 a.m., he woke up because of some noise and he saw that

scuffle was going on between Laden and the Appellant and

during that scuffle, the Appellant assaulted Laden with stick. In

short, he has deposed on similar lines as those of P.W.1.

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7. P.W.3 Jumal @ Munna Mushtaque Ahmed Pathan was

another eyewitness. He has narrated the incident in the same

manner as P.W.1 and P.W.2. In addition, he has stated that the

Appellant picked up stone and hit on the chest of Laden. He has

further deposed that the Appellant was shouting that he would

shower Laden with is own blood. Thereafter, the police came

there and Laden was removed to the hospital. The injured

eyewitness and the first informant Deepak Shekhargol was

examined as P.W.5. He has also narrated in the same manner as

P.W.1, P.W.2 and P.W.3. He has deposed that when the

Appellant assaulted Laden by stick on his head, the stick broke

and then the Appellant assaulted Laden by stone and when this

witness tried to intervene, the Appellant assaulted on his

forehead with the same stone. Thereafter this witness has

deposed about his lodging of the FIR.

8. P.W.4 Hasim Varun Kamparia was a Pancha witness,

who was present when the spot panchanama was carried out

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and the stones and sticks were recovered from the spot of

incident at Azad Maidan. P.W.9 Paraglal Surajpal Chaurasia was

examined as a Pancha. He was present when the Appellant was

arrested at 03.30 p.m. at Azad Maidan on 16/04/2007. In his

presence, the clothes of the Appellant were seized.

9. P.W.6 Dr. Helasicar Sadashiv Yashawant had examined

the injured Deepak Shekhargol and had noticed four injuries i.e.

two injuries below left eye, one abrasion on the right elbow and

one trauma over left lower chest. All these injuries were stated

to be simple injuries.

10. P.W.7 Dr. Rahul Chavan had examined deceased Kadar

Khan @ Laden when he was admitted to G.T. Hospital. He

noticed three injuries. Out of which, one injury on the head

admeasuring 4 cm x 2 cm x 1 cm, and it was stated to be

grievous injury. Other two injuries were simple in nature. He

further deposed that Kadar Khan @ Laden's condition worsened

and he succumbed to his injuries at 08.05 a.m.

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11. P.W.10 Dr. Nandratna Sadashiv Paikrao had performed

post-mortem on the dead body of Laden. He had noted five

injuries on the dead body. He noticed following injuries;

(1) Imprint abrasion of left forearm, dorsal aspect 2 in number;

1st - 3 cm x 1/2 cm 2nd - 2 cm x 1/2 cm (2) CLW on right pinna mid region l - 2 x ½ x ½ cm (3) CLW on left side of forehead above lateral side of eyebrow (bone deep) l - 3 x 2 x ½ cm (4) Abrasion on left cheek l - 8 x ½ cm (5) Imprint abrasion on left leg below knee over tibia l - 8 x ½ cm

He further opined that the injuries were sufficient in

the ordinary course of nature to cause death. The cause of death

was given as death 'due to head injury'. Thus, it can be seen that

there was only one major injury on the head, which led to the

death of the deceased.

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12. P.W.8 ASI Pradeep Balkrishan Ghag stated that, on

16/04/2007, he was busy in Nakabandi. He received a phone

call from his control room and was informed about the incident

at Azad Maidan. He rushed to the spot. He saw the injured

Laden lying at the spot. He was shifted to G.T. Hospital. P.W.8

ASI Ghag further stated that on the way to the hospital, the

injured Kadar Khan @ Laden told him that the Appellant had

assaulted him by stick, wooden plank and stone and also had

assaulted his friend Deepak Shekhargol.

13. P.W.11 API Parshuram Kisan Kale had conducted the

investigation and had filed the charge-sheet.

14. On careful perusal of the evidence, it is quite clear

that, through evidence of the eyewitness, the prosecution case

has successfully proved that the incident of assault took place at

Azad Maidan on 16/04/2007 at 06.00 a.m. The deposition of

the eyewitnesses is consistent and nothing much is elicited from

the cross-examination of these witnesses to discredit their

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evidence. Their evidence is corroborated by the medical

evidence. The injuries found on the person of the deceased

Laden, is consistent with their depositions.

15. The prosecution case is greatly bolstered by the

evidence of the inured eyewitness P.W.5 Deepak Shekhargol,

who not only was an eyewitness, but was injured during the

transaction due to assault by the Appellant, when this witness

tried to intervene in the quarrel between the Appellant and the

deceased. There is no reason to disbelieve this witness,

particularly when he had suffered injuries and his injuries are

proved through independent evidence of the Medical Officer

treating him. All these witnesses are natural witnesses, as they

were sleeping nearby overnight and were knowing each other.

The eyewitnesses even have spoken about the presence of each

other and therefore we find the evidence of these eyewitnesses

as cogent and reliable.

16. Besides the direct evidence, there is evidence of P.W.9

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who had shifted the deceased to the G.T. Hospital and on the

way the deceased who was still alive at that time, narrated the

incident. The statement made by Kadar Khan @ Laden to this

witness amounts to oral Dying Declaration, when Kadar Khan @

Laden had clearly told this witness that the Appellant had

assaulted him with the wooden stick. Therefore, this is an

additional circumstance in favour of the prosecution.

17. The clothes seized from the person of the Appellant

were sent for chemical analysis and they showed presence of

human blood of blood group 'B'. The blood group of the

deceased from his clothes was seen to be 'B' group and the blood

group of the Appellant himself was of 'A' group. Therefore, it can

safely be concluded that the blood of the deceased was found on

the clothes of the Appellant. This is an additional corroborative

piece of evidence against the Appellant.

18. Considering all this evidence on record, we are of the

opinion that the prosecution has successfully established the

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occurrence of incident and that the Appellant himself had

assaulted the deceased.

19. We have heard Mr.Sachin Chandan, the learned

counsel appearing for the Appellant and the learned APP Mr.H.J.

Dedhia for the State.

20. Learned Counsel Mr.Sachin Chandan submitted that

even if it is assumed that the Appellant had assaulted the

deceased, there was no intention to commit murder of the

deceased and therefore the offence would not fall within the

section 300 of the IPC.

21. We find considerable force in this submission. From

the evidence of the eyewitnesses it is clear that the incident was

a result of scuffle between the Appellant and the deceased. In

fact, the evidence of the important injured eyewitness Deepak

Shekhargol, P.W.5, shows that the Appellant snatched the stick,

which was in the hands of the deceased and assaulted Laden on

his head. Thus, it is quite obvious that there was no premeditation

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or preparation on the part of the Appellant to commit the

murder. The incident has clearly occurred on the spur of the

moment, as a result of sudden quarrel and scuffle between the

Appellant and the deceased. Therefore, the present case would

fall within the fourth exception mentioned u/s 300 of the IPC.

There was only one serious injury on the head of the deceased.

Therefore, it cannot be said that the Appellant took undue

advantage or acted in a cruel manner.

22. However, we do not agree with the learned counsel

Mr.Chandan that the case would fall under second part of

section 304 of IPC. The evidence of P.W.3 Jumal @ Munna

Pathan shows that while assaulting, the Appellant was shouting

that he would shower the deceased with his own blood. Thus,

the assault was caused with intention of causing bodily injury,

which was likely to cause death. Therefore, the offence u/s 304-

part I is clearly made out. At the same time, the assault on

injured Deepak and his injuries are proved and therefore the

offence u/s 324 of IPC is sufficiently proved by the prosecution.

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23. Therefore, we are of the opinion that the prosecution

though has succeeded in proving occurrence of the incident, the

ingredients of section 302 are not made out and to that extent,

the impugned judgment and order needs interference. Hence the

following order :

ORDER

1. The Appeal is partly allowed.

2. The conviction and sentence recorded by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.599/07 convicting the Appellant u/s 302 r/w 34 and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo rigorous imprisonment for one year, are set aside. Instead of that, the Appellant is convicted for the offence punishable u/s 304-Part I of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for six months.

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3. The conviction u/s 324 r/w 34 of IPC is altered to that of u/s 324 of IPC. The sentence imposed on him, of rigorous imprisonment of two years and to pay a fine of Rs.500/- and in default of payment of fine, to suffer further rigorous imprisonment for six months, is maintained.

4. The substantive sentences to run concurrently.

5. The Appellant shall be given benefit of set off u/s 428 of Cr.P.C. for the period of his detention during investigation and till conclusion of the trial.

6. The learned counsel Mr.Sachin Chandan, who was appointed in this matter and has assisted us during hearing of this Appeal, shall be paid his fees as per the rules, by the High Court Legal Aid Authority.

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