Sunil @ Pintya Bapu Khandale vs The State Of Maharashtra
2017 Latest Caselaw 7248 Bom

                                                        OJ APEAL 316-G.doc

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPEAL NO.223 OF 2012.



      Santosh Ashok Chavan                            ]
      age: 21 years, Occn. Painter                    ]
      r/at : Indira Nagar, B-33, Room No.12           ] Appellant
      Bibvewadi, Pune.                                ] Original
                                                      ] Accused No.1
      Presently lodged in Yerwada Central Jail        ]
      Pune                                            ]


                V/s.


      The State of Maharashtra                        ]
      At the instance of Haveli Police Station        ] Respondent
      Pune                                            ] Complainant



                                     WITH
                         CRIMINAL APPEAL NO.316 OF 2014



      Sunil @ Pintya Bapu Khandale                    ]
      age: 28 years, Occn. Labour                     ]
      r/o Sargam Chawl, Appar Super                   ] Appellant
      Indiranagar, Bibvewadi                          ] Original
      (confined as Convict No.C.15704                 ] Accused No.2.
      Yerwada Central Prison, Yerwada,Pune            ]

                V/s.

      The State of Maharashtra                        ]
      At the instance of Haveli Police Station        ] Respondent
      Pune                                            ] Complainant



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                                                        OJ APEAL 316-G.doc


Mr. Aniket Nikam, for the appellant in
Criminal Appeal No.223 of 2012.

Mr. Daulat G. Khamkar, for Appellant
appellant in Criminal Appeal No.316 of
2014.
Mrs. G. P. Mulekar, A.P.P., for the
Respondent-State in both appeals.




CORAM : SMT. V. K. TAHILRAMANI &
        DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : 18 TH SEPTEMBER, 2017.

ORAL JUDGMENT : [Per: Dr. Shalini Phansalkar-Joshi, J.]

1. These two separate appeals are preferred by original

accused Nos. 1 and 2, challenging the judgment and order dated

20th March, 2010, of Additional Sessions Judge, Pune, in Sessions

Case No.621 of 2005, thereby convicting them for the offence

punishable under Section 302 read with 34 of the Indian penal

Code and sentencing to imprisonment for life and fine of

Rs.5000/- each in default to suffer R.I. for two months.

2. Brief facts of the prosecution case can be stated as

under:-

OJ APEAL 316-G.doc

Deceased Ashok was the elder brother of P.W.7 Bajirao

Salve. Ashok was dealing Real Estate Business. Accused Nos. 1

and 2 used to work with Ashok in the said business. On account

of certain disputes relating to the business, the relations between

Ashok and accused No.1 Santosh were strained. Hence P.W.7

Bajirao told Ashok not to keep contact with accused No.1 Santosh.

3. The incident giving rise to the prosecution case, took

place on the night intervening between 3 rd and 4th August, 2005.

On that night P.W.7 Bajirao had slept in his house. At about 2.30

a.m. in the night, both the accused came to his house and asked

him to come outside the house. Accordingly, he came outside the

house. They told him to wake up his brother Ashok also. However,

P.W.7 Bajirao told them not to wake up Ashok and matter can be

looked into in the morning. However, both the accused did not

listen to P.W.7 Bajirao and went to the house of Ashok, woke him

up, took him alongwith them and proceeded towards Mari-ai

temple. Out of suspicion, P.W.7 Bajiralo also followed them, as the

accused were carrying weapon like Sattur in their hands. After

some distance, he saw that both the accused started assaulting

Ashok with Sattur and Ashok was shouting for help. P.W.7 Bajirao

rushed to the help of Ashok. Ashok fell down with injuries on his

OJ APEAL 316-G.doc

person. Hearing his shouts, P.W.3 Narayan also came there. Then

P.W.7 Bajirao took Ashok to Satyanand Hospital and from there to

Sasson Hospital. Ashok was, there, declared dead on admission.

P.W.7 Bajirao, then went to Haveli Police Station and lodged

complaint against the accused. On his complaint Exh.85,

C.R.No.234 of 2005 came to be registered against accused.

4. The investigation of the crime was entrusted to P.W.11

Police Inspector -Patil. He went to the spot of incident and made

panchnama of the existing situation at the scene of crime vide

Exh.66 in the presence of Panch P.W.1 Manoj Bhingardeive. From

the spot, he collected soil mixed with blood, one shoe of left leg,

one pair of sandal etc, alongwith the motorcycle of Yamaha

Company. On the next day, P.W.11- PI Patil seized the clothes of

the deceased under panchnama. During police custody, on

7.8.2005, accused No.1 Santosh gave disclosing statement which

led to the recovery of weapon of assault Sattur and his blood

stained clothes vide Exh.114. Further at the instance of accused

No.2 also, weapon of assault Sattur and his blood stained clothes

came to be seized under panchnama Exh.82, in the presence of

P.W.5 panch Yogesh. P.W.11 PI Patil, has then sent all these

seized articles to Chemical Analyzer. The Chemical Analyzer's

OJ APEAL 316-G.doc

reports are at Exh.118 to 122. He has also collected the

postmortem report of the deceased from Sasson hospital and on

completion of due investigation, filed charge sheet in the Court of

Judicial Magistrate First Class, Court No.7, Pune, against the

accused.

5. On committal of the case to the Sessions Court at

Pune, the trial Court framed charge against the accused vide

Exh.2. Both the accused pleaded not guilty and claimed trial

raising defence of denial and false implication.

6. In support of its case, prosecution examined in all 11

witnesses and on appreciation of their evidence, the trial Court

was pleased to hold the guilt of both the accused to be proved

beyond reasonable doubt and convicted and sentenced them as

aforesaid.

7. In this appeal, we heard learned counsels for both the

appellants, who have challenged the judgment of the trial Court,

on the ground that the evidence of eye witnesses in this case is

not consistent, reliable and cogent.

OJ APEAL 316-G.doc

8. Per contra, learned APP for the State has supported

the judgment for the reasons stated therein.

9. In the light of these rival submissions, made by leaned

counsels for both the appellants and learned APP and after giving

our anxious consideration to the evidence adduced on record, we

are of the considered view that the prosecution in this case has

succeeded in proving that accused Nos. 1 and 2 have caused death

of Ashok by stabbing him to brutal assault with Sattur. The

reasons for our finding are given herein under.

10. The prosecution case is based on the evidence of two

eye witnesses. The first is P.W.7 Bajirao- the brother of deceased

Ashok, who has lodged complaint. His evidence, as stated above,

goes to show that Ashok was his elder brother and accused Nos. 1

and 2 were working with Ashok in his real estate business.

However, there were disputes between them and as a result the

relations between Ashok and the accused were strained. He even

advised Ashok not to keep relations with the accused. According

to his evidence, on the night between 3.8.2005 and 4.8.2005 at

about 2.30 a.m, while he was sleeping in the house, accused

persons came there, woke him up and told him to wake up Ashok

OJ APEAL 316-G.doc

also on the count that some boys from Upper Indira Nagar have

assaulted the brother of accused No.1 Santosh. This witness tried

to persuade the accused persons not to wake up up Ashok.

However, they did not listen to him. They went to the house of

Ashok and woke up him and took him to towards Mari Aai temple

side. Hence, on apprehension that accused may take deceased to

upper Indira Nagar and there would be quarrels and fights, as

accused persons were carrying weapons like Sattur in their

hands, this witness has followed the accused and Ashok. When

they reached near Mari Aai temple, he saw that both the accused

started assaulting Ashok with weapons in their hands. Ashok

was shouting for help and he fell down in injured condition.

Thereupon accused No.1 Santosh ran towards Laxmi Nagar

locality; whereas accused No.2 ran towards Kakade Nagar

locality. Hearing the shouts of Ashok, P.W.1 Manoj and P.W.3

Narayan also rushed there. Then Ashok was taken in injured

condition to hospital, where he was declared dead.

11. This evidence of P.W.7 Bajirao is getting complete

support and corroboration from the complaint exh.85, which is

lodged immediately on the same night. At about 5.45 a.m. offence

is registered on the said complaint.

OJ APEAL 316-G.doc

12. There is also corroboration to this evidence of P.W.7,

Bajirao, from the evidence of P.W.3 Narayan, who is having Video

Center just in front of the house of deceased. According to his

evidence also, on that night at about 3.15 a.m., he saw deceased

and accused persons proceeding towards Mari Aai temple and

after some distance, they assaulted the deceased with weapons

like Sattur in their hands. Ashok, then started shouting for help

to save him. Thereupon accused ran from the spot. Then P.W.7

Bajirao who was present there took Ashok to the hospital.

13. Further, there is also evidence of P.W.1 Manoj, who

had also rushed to the spot after hearing shouts of Ashok and

found him lying in a pool of blood. He has deposed about the

presence of P.W.3 Narayan and P.W.7 Bajirao at the spot, who had

then taken the injured Ashok to the Hospital.

14. The prosecution has also relied upon the evidence of

P.W.2 Aiju to prove that after assault, accused Nos. 1 and 2 had

come to his house for shelter. However, seeing that accused No.1

was having Sattur in his hand and his clothes were blood stained,

he refused to allow them to enter in his house. Hence they went

away.

OJ APEAL 316-G.doc

15. If at all any further corroboration is required to this

evidence of eye witnesses, there is evidence of P.W.5 panch Yogesh

and P.W.11 PI Patil, to prove that at the instance of accused No.2

Sattur was recovered alongwith his blood stained clothes. The

evidence of P.W.1 PI Patil also proves recovery of sattur at the

instance of accused No.1 Santosh. The Chemical Analyzer's

reports prove that the clothes of the accused and the Satturs

recovered at their instance, were found to be having human blood

stains. Though the reports show that blood groups could not be

ascertained, as per settled law, it does not affect the prosecution

case as accused persons in their statement recorded under

Section 313 of the Code of Criminal Procedure, have not offered

any explanation as to presence of these human blood stains on

their clothes.

16. Lastly there is also evidence of P.W.4 Dr.Ramkrishna

Bhusale, who had conducted autopsy on the dead body of Ashok

and found as many as 10 external injuries and two internal

injuries; which are as follows :-

OJ APEAL 316-G.doc

I. External injuries.

1. Stab wound on left flank of size 12 cm x 1cm x 7 cm.

2. Cut and lacerated wound on hypothenar eminence of left palm of size 1 x 0.2 cm.

3. Laceration 3 x 1 on posterior aspect of left wrist.

4. C.L.W. on left lobe of ear 1.5 x 0.5 cm.

5. CLW which is C shaped and 6 cm in length on left fronto parietal region 6 cm above left ear.

6. CLW on right parietal region which is C-shaped and 8 cm in length.

7. Stab wound on right hip lateral size 6 x 2 cm x 3 cm.

8. Stab wound on left hip posterior aspect in size 3 x 1 x 1cm.

9. CLW on right ring finger 3 x 0.5 cm.

10. Abrasion on left temporal region 0.5 cm in diameter.

II. Internal injuries.

1. Small haematoma of 1 cm in diameter on left parietal region and brain was edematous.

OJ APEAL 316-G.doc

2. Small intestine shows haematoma small intestine.

Mesentary shows haematoma of 2 x 2 cm.

Left para spinal muscle in lumber region ruptured.

17. According to his evidence, the cause of the death was

haemorrhage shock as a result of multiple stab injuries on head,

abdomen and on different parts of body.

18. Though learned counsel for appellants have

challenged the evidence of eye witnesses on account of certain

inconsistencies in their testimony, the law is fairly well settled

that the minor discrepancies do not affect the prosecution case, if

the prosecution has succeeded in proving substratum of the

incident. Here in the case, absolutely nothing is brought on record

to show as to why these prosecution witnesses are deposing

falsely against the accused.

19. Though the submission is advanced that no

independent witness is examined, having regard to the time of the

incident, which has taken place in the night at 2.30 to 3.00 a.m.,

the possibility of any other witness being present has to be ruled

out. Moreover, it is well settled that the close relatives of the

deceased are the last persons to implicate an innocent person and

OJ APEAL 316-G.doc

allow the real culprit to escape.

20. An attempt is made to submit that immediately after

the incident, first information was given by P.W.7 Bajirao to the

police at Hospital vide "Article-D" and in that information the

name of accused No.2 is not appearing. It is urged that Article-D

should have been treated by the trial Court as F.I.R., as it discloses

commission of non cognizable offence and it is first in time.

However, in our considered opinion, as the said information is

cryptic one and it was merely for the purpose of admitting injured

Ashok in the hospital, it cannot be treated as F.I.R. Secondly in

that information also, it is categorically stated that accused No.1

has assaulted Ashok alongwith his associate. Then there is

evidence of eye witness and P.W.7 Bajirao, who has seen both the

accused persons assaulting the deceased. There is also evidence

of P.W.3 Narayan and P.W.2 Aiju to that effect, leaving no manner

of doubt about involvement of accused No.2 in the incident.

Further, as stated above, the recovery of the blood stained Sattur

and clothes is also at the instance of accused No.2, which is

proved through evidence of independent panch witness P.W.5

Yogesh and P.W.11 PI Patil.

OJ APEAL 316-G.doc

21. In our considered opinion, therefore, the prosecution

has succeeded in proving its case against both the accused

persons beyond reasonable doubt. The appeals, therefore, hold no

merit. Hence both the appeals stand dismissed.

[DR.SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K.TAHILRAMANI, J.]