Bombay High Court
Hareshwar @ Hemant Janu Sogale And ... vs The State Of Maharashtra on 13 January, 2018
Bench: B.R. Gavai
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BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.424 OF 2010
1] Hareshwar @ Hemant Janu Sogale )
Age 40 years, Occ: Agirculture )
)
2] Santosh Sakharam Jadhav )
Age 31 years, Occ: Agriculture )
)
3] Mahesh Anant Bhoir )
Age 27 years, Occ: Agriculture )
)
4] Vivek Madhukar Sogale )
Age 29 years, Occ: Agriculture )
)
All residents of Village Narze, )
Tal: Palghar, Dist. Thane )
(All in custody at Thane Central Prison) ) ..... Appellants.
(Orig. Accused Nos. 1 to 4)
Versus
The State of Maharashtra )
(Inspector of Police, Saphale Police )
Station, Taluka Palghar, Dist. Thane ) .... Respondent.
Mr. S.V. Marwadi, Advocate for the Appellants.
Mr. J.H. Dedhia, APP for the Respondents.
CORAM: B. R. GAVAI &
BHARATI H. DANGRE, JJ.
DATE: 13th JANUARY, 2018
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ORAL JUDGMENT: (Per B. R. Gavai, J.)
1] Present appeal takes exception to the Judgment and Order
passed by the learned Sessions Judge, Palghar in Sessions Case No.181
of 2007, thereby convicting the Appellants for the offence punishable
under Section 302 read with Section 34 of the Indian Penal Code and
sentencing them for life each and to pay fine of Rs 2,000/- each, and
in default, to suffer R.I. for six months each.
2] Prosecution case, as could be gathered from the material placed
on record, is thus :
3] Both, deceased Umakant Naresh Sogale and Accused No.1 were
engaged in the business of excavation of sand and supplying the same.
Both of them were in the said business at the Port, on the bank of the
creek of Vaitarna river at Village Navze. It is also not in dispute that
there is civil dispute pending between Appellant No.1 and deceased
with regard to property.
4] It is the prosecution case that, on the date of incident i.e. on
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17/04/2007, P.W. 2 - Ramchandra Pawar heard sound of quarrel.
When he went there, he saw accused persons assaulting deceased with
iron rod and sticks. P.W. 2 - Ramchandra gave call to others and,
thereafter, P.W. 4 - Yogesh Patil, P.W. 5 - Praful Patil, P.W. 6 -
Jitendra Patil came there. After these persons came there, accused ran
away in vehicle. Deceased was taken in a truck to Manor Hospital at
Village Manor and thereafter when he was being taken to Civil
Hospital Thane, on the way to Thane near Vasai, he became serious
and therefore he was brought to Sanjivani Hospital at Virar. However,
when he was brought there, he was declared to be dead.
5] On receipt of information regarding incident, P.W.7 - Anil Patil,
PSI, recorded the statement of deceased and took a station diary entry
and on the basis of the same, FIR came to be registered in the Police
Station.
6] On the basis of the FIR, investigation was carried out.
Postmortem was conducted. The deceased sustained around 15
injuries on his person. Statement of witnesses under Section 164 also
came to be recorded. Certain incriminating material was seized at the
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instance of accused persons under the memorandum under Section 27
of the Indian Evidence Act. At the conclusion of investigation, charge-
sheet came to be filed in the Court of Metropolitan Magistrate. Since
the case was exclusively triable by the Sessions Court, the same was
committed to learned Sessions Judge, Palghar.
7] Learned Sessions Judge framed charges for the offence
punishable under Sections 302, 504, 406 read with section 34 of the
Indian Penal Code. At the conclusion of the trial, learned Trial Judge
acquitted the accused of the offence punishable under Sections 504
and 506 read with Section 34 of the Indian Penal Code. However, the
learned Sessions Judge passed an order of conviction and sentence, as
aforesaid. Being aggrieved thereby, the present appeal.
8] Mr. Marwadi, learned Counsel appearing on behalf of the
Appellants, submits that the learned Trial Judge has grossly erred in
passing the order of conviction. He submits that, perusal of the
evidence of most of the witnesses would reveal that, they are
interested witnesses inasmuch as they are either relative of the
deceased or employees working with the deceased. He further submits
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that, from the testimony of these witnesses, it would reveal that the
spot of incident was not visible to them from the place where they
were working. He therefore submits that, conviction based on the
basis of such evidence is not sustainable.
9] In the alternative, learned Counsel for the Appellants submits
that, the material placed on record would reveal that there was no
intention to commit murder of the deceased. He therefore submits
that the case would not fall under Section 302 of IPC but under some
smaller offence. He submits that, the appeal deserves to be allowed
and the order of conviction needs to be set aside.
10] Mr. Dedhia, learned APP appearing on behalf of the prosecution,
vehemently opposes the appeal. He submits that, evidence of all the
witnesses is cogent, trustworthy and reliable. He submits that, the
version given by all the five eye witnesses would reveal that, they have
attributed a specific role of assault to all the accused persons. He
therefore submits that, no interference is warranted in the present
appeal and the appeal deserves to be dismissed.
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11] Since death of deceased being homicidal, is not disputed by the
Appellants, it is not necessary for us to go into medical evidence. With
the assistance of the learned Counsel for the Appellants and the
learned APP, we have scrutinized the evidence on record. The main
evidence would be that of P.W. 2 - Ramchandra Pawar. He states that,
he and accused - Hemant were doing the sand business at the same
place. He states that, deceased Umakant was also doing the sand
business. He states that, when he had gone to the place of business at
about 8 a.m. at the port, his fiber was in the river. At about 9 a.m., he
heard sound of quarrel. When he went towards the place from where
the sound was coming, he saw quarrel was going on and all the four
accused were assaulting Umakant by iron rod and sticks. Accused
Vivek was possessing iron rod, whereas other three accused were
having sticks. He told the accused not to assault him, still they
continued to do with the same. He states that thereafter other
witnesses came there.
12] Though there are certain contradictions and omissions in the
evidence of P.W. 2 - Ramchandra Pawar, we find that nothing
damaging, insofar as main incident of assault is concerned, has come
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on record. Apart from that, from the nature of injuries, as could be
seen from the postmortem report, version given by this witness with
regard to assault by iron rod and sticks, stands corroborated. So far as
other witnesses are concerned, even according to this witness, they
have come subsequently. In our view, they cannot be termed to be eye
witnesses. Some of them are admitted to be the employees of
deceased. In any case, when evidence of solitary witness is found to
be sound, trustworthy, cogent and reliable, conviction on the basis of
such evidence would always be permissible. We find that there is
nothing to disbelieve P.W.2 - Ramchandra Pawar. P.W.2 alongwith
the deceased and Accused No.1 - Hemant were engaged in the same
business. Nothing about business rivalry has been brought on record.
In that view of the matter, we find that evidence of P.W. 2 -
Ramchandra Pawar, insofar as it attributes authorship of the assault to
the present Appellants is concerned, the same can be very well relied
upon. We have therefore no hesitation in holding that, it is the
present Appellants who are responsible for causing injuries, which
have resulted in the death of the deceased.
13] That leads us to the next question, as to whether conviction
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under Section 302 needs to be maintained or altered to some lesser
offence. It has come in the evidence of P.W. 3 - Rajkumar Sogale who
was the cousin of the deceased as well as his partner in the business
that, there was civil dispute going on between Appellant No.1 and
the deceased. It will also be relevant to refer to the following part of
the evidence of P.W.2 - Ramchandra Pawar in para 4 of his
deposition :-
4......... "Such type of iron are available at
Navze. Such. Suh type of muddemal sticks
are also easily available. There is no special
identification for me to identify the rod."......
It could thus be seen that, weapons which are said to have been used
in the crime in question, were very much available on the spot. There
is nothing on record to show that there was premeditation on the part
of the Appellants to commit crime. On the contrary, evidence on
record shows that, Accused No.1 was carrying on his business at the
same spot. We find that the prosecution has failed to bring on record
real genesis of the offence. Admittedly, present Appellants were not
armed with arms. We find that possibility of quarrel taking place on
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account of dispute pending between Appellant No.1 and the deceased
and in the said quarrel, Appellants lifting the rod and sticks which
were very much available on spot and assaulting the deceased with
the same, cannot be ruled out. We find that, the Appellants are
entitled to benefit of doubt, since the prosecution has failed to prove
that, there was any intention on the part of the accused to cause death
of the deceased. In our considered view the Order of conviction of the
Appellants under Section 302 of IPC needs to be altered to one under
Part-II of Section 304 of IPC.
14] In the result, following order is passed.
O R D E R
(i) Appeal is partly allowed. The Order of
conviction under Section 302 IPC is altered
to one under Part-II of Section 304 IPC.
Appellants/Accused are directed to suffer R.I.
for 10 years for the said offence.
(ii) Rest of the Order including fine etc. is
maintained.
(BHARATI H. DANGRE, J. ) (B. R. GAVAI, J. )
