Sarang S/O. Kailash Zade And ... vs The State Of Maharashtra Thr. ...
2018 Latest Caselaw 768 Bom

                                                        1                                   jg.apeal.184.17.odt



                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                            CRIMINAL APPEAL NO. 184 OF 2017

(1) Sarang s/o Kailash Zade,
      Aged about 23 years, 
      Occ :- Vegetable Vendor, 

(2) Nihal s/o Kailash Zade,
      Aged about 20 years, 
      Occ :- Vegetable Vendor, (In Jail) 

      Both R/o : Ramnagar, Datala Road, 
      Bakul Apartment, 
      Tahsil and District - Chandrapur.                                                     ... Appellants

             VERSUS

The State of Maharashtra, 
Through Police Station Officer, 
Police Station Chandrapur City, 
District - Chandrapur.                                                                       ... Respondent
-------------------------------------------------------------------------------------------------
Shri R. M. Daga,  Advocate for the appellants
Mrs. K. R. Deshpande, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 10/01/2018.

Date of pronouncing the judgment : 22/01/2018

Judgment (Per : M.G. Giratkar, J)

Appellants assailed the judgment of conviction in Sessions

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Case No. 92/2014 passed by learned Additional Sessions Judge,

Chandrapur for the offences punishable under Sections 302 and 324

read with Section 34 of the Indian Penal Code. Both the appellants

sentenced to suffer imprisonment for life and to pay a fine of

Rs. 25,000/- each, in default to suffer simple imprisonment for one

year for the offence punishable under Section 302 read with Section

34 of the Indian Penal Code. Both the appellants sentenced to suffer

rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-

each, in default to suffer simple imprisonment for three months for the

offence punishable under Section 324 read with Section 34 of the Indian

Penal Code . Both the substantive sentences shall run concurrently.

2. The case of the prosecution against both the appellants in

short is as under.

(i) Poornima Khobragade and Dipali Malode @ Zoya were the

friends of Imran, deceased Naved and appellant no. 1 Sarang Zade.

Both the girls were working in Gujrat Saree Center at Chandrapur. They

were in search of room. Deceased Naved booked one room of Shrawan

Wakde. Imran requested deceased Naved and Hasim to allow both the

girls to occupy the said room. Both girls started residing as a tenant in

3 jg.apeal.184.17.odt

the room of Shrawan Wakde. Naved used to visit the said room.

Poornima Khobragade was the friend of deceased Naved. Dipali Malode

was girlfriend of appellant no. 1 Sarang. Sarang used to visit said room

to meet Dipali. Sarang was having physical relations with Dipali Malode

in the said room. Naved was having physical relation with Poornima.

Naved came to know about the physical relations of Sarang in the said

room and therefore, he was angry upon Sarang.

(ii) On 29-5-2014, Hasim and Naved went to the said room. Dipali

was talking with Sarang on mobile. Both of them became angry after

hearing the talks of Dipali with Sarang. They told Dipali and her friend

Poornima to vacate the room immediately. They told both the girls to

call Imran who brought them to occupy the said room. Imran came in

the room within 15 minutes. Dipali called Sarang. Naved caught hold

the collar of Sarang and asked him how he came in the said room.

Hasim also gave push to Sarang.

(iii) Imran separated the quarrel and told them not to quarrel. Sarang

told both the girls that they will lodge report against Hasim and Naved.

Sarang took both the girls (Poornima and Dipali) on his motorcycle.

Imran gave call to Sarang and asked him where he is. Sarang replied

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that he was near Pathanpura Gate. Imran talked with Sarang to

compromise the matter. Imran reached to Pathanpura Gate. Hasim and

Naved also reached to Pathanpura Gate to sort out the matter.

(iv) It is further case of the prosecution that Naved and Hasim called

Mohsin and Juned to Pathanpura Gate. Hasim and Naved reached

Pathanpura Gate within 15 minutes. Mohsin and Juned reached there.

Imran and Sarang were talking. Naved and Sarang started quarrel.

Brother of Sarang, Nihal was there. There was scuffle/quarrel between

two groups. Imran, Hasim, Naved, Mohsin and Janed on one side and

both the appellants were on other side. Sarang and Nihal assaulted

Hasim and Naved by kicks and fist blows. Sarang broke one beer bottle

and assaulted the said bottle on the left hand of Juned and on his eye

brow. Juned sustained injuries. Nihal Zade took out a knife and gave

blow of knife on the chest of Naved. Naved and Juned were taken to

the Government Hospital by Mohsin, Imran and Hasim. Medical Officer

declared Naved brought dead.

(v) Hasim informed father of Naved about the incident. He reached

in the Government Hospital. His son Naved was dead. Hasim disclosed

incident to him. Thereafter P.W. 1 Sheikh Iqbal, father of deceased

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lodged the report in City Police Station, Chandrapur.

(vi) Dr. Gedam conducted postmortem on the dead body of Naved.

He found one injury admeasuring 3 cm x 1½ cm on the chest.

Accordingly, he issued postmortem report, Exhibit 120. As per his

opinion, cause of death was shock due to injury to vital organs.

(vii) Investigating Officer arrested both the accused, prepared spot

panchanama and seized broken bottle from the spot of incident.

Motorcycles of both the appellants were seized. PSI Vaishya recorded

confessional statement of appellant Nihal Zade. As per his confessional

statement, knife was recovered. All the seized property were sent to

Chemical Analyzer. After complete investigation, charge-sheet was filed

before the Judicial Magistrate First Class, Chandrapur. As offence

punishable under Section 302 of the Indian Penal Code was exclusively

triable by the Court of Sessions, therefore, case was committed to the

Court of Sessions.

(viii) Trial Court framed charge at Exhibit 25 for the offence punishable

under Section 302 read with Section 34 of the Indian Penal Code for

intentionally killing deceased Naved. Both appellants were charged for

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the offence punishable under Section 324 read with Section 34 of the

Indian Penal Code for voluntary causing injury by sharp weapon/broken

beer bottle to Juned. Charge was readover and explained to both the

appellants. They pleaded not guilty and claimed to be tried. Defence

appears to be of total denial.

(ix) The prosecution has examined following witnesses.

(1) P.W. 1 Sheikh Iqbal Sheikh Ismile (Exhibit 45) (2) P.W. 2 Bhaskar Kashinath Sahare (Exhibit 73) (3) P.W. 3 Sk. Hasim Sk Asgar (Exhibit 102) (4) P.W. 4 Rajkumar Gopal Nandbanshi (Exhibit 106) (5) P.W. 5 Mohsin Khan Ahmedkhan Pathan (Exhibit 114) (6) P.W. 6 Imran Khan Abdul Khan Pathan (Exhibit 116) (7) P.W. 7 Dr. Ravi Uddhaorao Gedam (Exhibit 118) (8) P.W. 8 Mohd. Juned Mohd. Yakub (Exhibit 125) (9) P.W. 9 Dr. Digambar Krishnarao Rathod (Exhibit 130) (10) P.W. 10 Krishnadas Maroti Mathankar (Exhibit 136) (11) P.W. 11 Shri Shankar Keshaorao Niwalkar (Exhibit 144) (12) P.W. 12 Shri Rahul Ramdhan Jadhav (Exhibit 149) (13) P.W. 13 Nanda Ramesh Vaishya (Exhibit 159)

(x) Statements of both the appellants were recorded under Section

313 of the Code of Criminal Procedure. They have denied material

incriminating evidence. They have filed written statement at Exhibit

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167. Both the appellants have stated that there was quarrel on account

of girls, namely, Poornima and Dipali. Deceased Naved quarreled with

appellant on the room of Shrawan Wakde. Dipali told Sarang that

Hasim misbehaved with her. There was quarrel at the said room.

Hasim and Naved directed both the girls to vacate the room

immediately. Therefore appellant Sarang taken both the girls and told

Hasim and Naved that both the girls would lodge report against him.

Imran called Sarang on phone and requested him to settle the matter.

On his request, Sarang and his brother went to Pathanpura Gate.

Hasim, Naved, Imran, Juned and Mohsin came to Pathanpura Gate.

They started quarreling with the appellants. Deceased Naved was

having knife. During the scuffle, he sustained injury and died.

(xi) Defence has examined one witness i.e. D.W. 1 Dipali Shantaram

Malode at Exhibit 170.

(xii) Learned trial Court heard the prosecution and defence and

convicted both the appellants as stated above. Hence, the present

appeal.

3. Heard learned counsel Shri R. M. Daga for the appellants.

8 jg.apeal.184.17.odt

He has submitted that charge against both the appellants for the offence

punishable under Section 324 read with Section 34 of the Indian Penal

Code was for voluntary causing hurt to the witness Juned. P.W. 8

Mohd. Juned himself has stated in his evidence that there was quarrel

between two groups. He tried to rescue the quarrel among both the

groups. Imran was holding one bottle of beer and during his attempt in

rescuing the quarrel, he sustained injuries on his left hand. Nihal and

Naved were snatching knife from each other's hand. After some time,

Naved fell down on the ground.

4. Learned counsel Shri Daga has submitted that the trial

Court wrongly convicted both the appellants for the offence punishable

under Section 324 read with Section 34 of the Indian Penal Code for

causing hurt to Juned (P.W. 8). Evidence of injured himself shows that

he sustained injuries during scuffle. When he intervened in the quarrel,

he sustained injury of beer bottle which was in the hand of Imran.

Therefore, conviction for the offence punishable under Section 324 read

with Section 34 of the Indian Penal Code liable to be set aside.

5. Learned counsel Shri Daga pointed out evidence of material

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witnesses i.e. P.W. 1 Sheikh Iqbal, P.W. 3 Sk. Hasim, P.W. 5 Mohsin

Khan, P.W. 6 Imran Khan and P.W. 8 Mohd. Juned and submitted that

all the material witnesses have stated that there was quarrel between

two groups. P.W. 3, P.W. 5, P.W. 6 and P.W. 8 and deceased Naved

were on one side and both the appellants were on other side. All the

material witnesses have not stated anything against appellant no. 1.

They have only stated that there was quarrel between appellant no. 1

and deceased Naved. Suddenly, scuffle started between two groups. In

the scuffle, Sarang gave blow of broken beer bottle on the hand of

Juned. As per evidence of witnesses, appellant no. 2 gave one blow of

knife on the chest of Naved. None of the witnesses have stated against

appellants stating that appellant no. 1 Sarang beat deceased Naved by

any weapon. Therefore, he is wrongly convicted by the trial Court for

the offence punishable under Section 302 of the Indian Penal Code.

6. Learned counsel for the appellants has submitted that

admittedly, there was sudden quarrel between two groups. Hasim,

Imran, deceased Naved, Juned and Mohsin were on one side and

appellant nos. 1 and 2 were only on other side. In the scuffle, the

appellant no. 2 gave a single blow of knife. Evidence of Dr. Gedam

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shows that he noticed only one injury on the chest of deceased Naved.

Learned counsel has submitted that appellant no. 2 not given more

blows. He did not act in a cruel manner. Whatever he had done was

due to fear in his mind because they were only two brothers on one side

and five persons were on other side. Therefore, there was no intention

on the part of appellant no. 2 to cause death of deceased Naved. He is

wrongly convicted for the offence punishable under Section 302 of the

Indian Penal Code and at the most, offence punishable under Section

304 Part II of the Indian Penal Code is attracted. At last, learned

counsel has submitted that both the appellants be acquitted,

alternatively, prayed to consider the act of appellant no. 2 for the

offence punishable under Section 304 Part II of the Indian Penal Code.

7. Heard learned Additional Public Prosecutor Mrs. Deshpande

for the State/respondent. She has submitted that material eye witnesses

have stated that both the appellants beat deceased and other witnesses.

Their evidence is well supported by medical evidence. Learned trial

Court rightly convicted both the appellants. Hence, there is no merit in

the appeal and liable to be dismissed.

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8. From the evidence of material witnesses, namely, P.W. 3 Sk.

Hasim and P.W. 6 Imran, it is clear that Poornima and Dipali were

residing on rent at the house of Shri Wakde. Deceased Naved had love

affair with Poornima and appellant no. 1 Sarang was having love affair

with Dipali. Deceased Naved was not liking the visit of appellant no. 1

on the room of both the girls.

9. On the day of incident i.e. on 29-5-2014, P.W. 3 Hasim and

deceased Naved went to the room of Poornima and Dipali. They saw

Dipali talking on mobile with appellant Sarang. They became angry and

called Imran. As per the defence witness, namely, Dipali Malode, she

along with Poornima were brought to the house of Shri Wakde. Imran

taken both the girls on that room. Deceased Naved was having affair

with Poornima. P.W. 3 Hasim always tried to have sex with her

(Dipali). On the day of incident at about 9.00 p.m., Naved carried

Poornima along with him on the terrace. Hasim came near her and

wanted to have sex with her. She gave push to Hasim. Thereafter she

called appellant Sarang. Hasim, deceased Naved and Poornima called

Imran at their room. Sarang reached there prior to arrival of Imran.

After arrival of Sarang, Hasim and Naved asked him why he came on the

12 jg.apeal.184.17.odt

said room and both of them started assault on Sarang. During that time,

Imran reached at the room. He stopped the quarrel. Thereafter Hasim

told Dipali and Poornima to vacate room immediately. Dipali and

Poornmia requested them to allow them to remain in the said room for

that night but they were reluctant.

10. Dipali disclosed to appellant Sarang that Hasim tried to

outrage her modesty and tried to have sex with her. Therefore, Sarang

told both the girls not to live in that room and they have to lodge report

in the police station. Appellant Sarang taken both the girls and kept

them in the house of maternal aunt at Pathanpura Ward.

11. When Sarang was on the way to Pathanpura, P.W. 6 Imran

talked with Sarang and called him to Pathanpura Gate to settle the

matter. Evidence of P.W. 3 Sk. Hasim, P.W. 5 Mohsin Khan, P.W. 6

Imran Khan and P.W. 8 Mohd. Juned clearly show that Imran called

appellant Sarang at Pathanpura Gate. Appellant Sarang called his

brother. It appears that Sarang was knowing about the further episode.

P.W. 3, P.W. 5, P.W. 6 and P.W. 8 along with deceased Naved called

appellant Sarang so as to teach him lesson. Naved and Hasim

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proceeded towards Pathanpura Gate. They called P.W. 8 Juned and

P.W. 5 Mohsin at Pathanpura Gate. From the cross-examination of these

material witnesses, it is clear that there was quarrel between two

groups. P.W. 3, P.W. 5, P.W. 6, P.W. 8 and deceased Naved were on

one side and both the appellants were on other side. During quarrel,

both sides beat each other.

12. Trial Court has framed charge for the offence punishable

under Section 324 read with Section 34 of the Indian Penal Code against

both the appellants for causing hurt to P.W. 8 Juned. It is pertinent to

note that Juned has stated in his evidence that he tried to rescue the

quarrel between two groups, at that time, Imran was holding one bottle

of beer and during intervening quarrel, he sustained injuries on his left

hand. He fell down on the ground and sustained injuries. This

particular evidence not taken into consideration by the trial Court.

Injured himself not stated that any of the appellants voluntarily caused

injury to P.W. 8 Juned by broken beer bottle. Therefore, it is clear that

conviction for the offence punishable under Section 324 read with

Section 34 of the Indian Penal Code is not sustainable and liable to be

quashed and set aside.

14 jg.apeal.184.17.odt

13. In respect of offence punishable under Section 302 read

with Section 34 of the Indian Penal Code against both the appellants,

evidence of P.W. 1, P.W. 3, P.W. 5, P.W. 6, P.W. 8 and medical evidence

is very material. P.W. 1 is the father of deceased. He came to know

from Hasim about the incident. He straightway went to the General

Hospital, Chandrapur and found his son Naved on the stretcher in dead

condition. Hasim narrated the incident to him. Hasim told him that

quarrel took place amongst Sarang Zade on one side and Naved and

Hasim on other side. Scuffle also took place amongst both groups

thereafter. When the scuffle was going on amongst both groups, brother

of Sarang came on the spot and assaulted Naved on left side of chest.

He has stated in his evidence that he saw only one injury on the chest of

deceased.

14. From the evidence of P.W. 1, it is clear that P.W. 3 Hasim

not disclosed the entire episode to P.W. 1.

15. P.W. 3 Hasim has stated about the incident. As per his

evidence, after the quarrel in the room, appellant Sarang taken both

the girls. It appears from the cross-examination and evidence of

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Dipali (D.W. 1), Sarang told them that they will lodge report for

outraging modesty of Dipali. P.W. 6 Imran called Sarang at Pathanpura

Gate. After reaching both the girls to the house of his maternal aunt,

Sarang and his brother Nihal went to Pathanpura Gate.

16. Evidence of Hasim clearly shows that both the appellants

were present at Pathanpura Gate. He has not stated anything against

appellant Sarang in respect of causing any injury to deceased Naved.

Other witnesses also not stated anything against appellant Sarang

causing any injury to deceased. They have stated that there was scuffle

between two parties.

17. P.W. 3, P.W. 5 and P.W. 6 have stated that appellant Sarang

broke the beer bottle and caused injury to P.W. 8. During scuffle,

appellant no. 2 Nihal gave blow of knife to deceased Naved. Evidence of

these material witnesses clearly show that appellant no. 1 not caused

any injury to deceased Naved, therefore, conviction against him for the

offence punishable under Section 302 of the Indian Penal Code is liable

to be quashed and set aside.

18. There is no dispute about the evidence of material witnesses

16 jg.apeal.184.17.odt

that there was quarrel between two groups. It is pertinent to note

that appellant Sarang while taking both the girls told Hasim and

Naved that they will lodge report in the police station for outraging

modesty of Dipali. While Sarang was on the way, he was called by

P.W. 6 Imran at Pathanpura Gate to settle the matter. Sarang and his

brother Nihal went to Pathanpura Gate. Thereafter Hasim and Naved

went to Pathanpura Gate. Hasim called Mohsin and Juned to the spot of

incident. It appears from the evidence that there was scuffle between

two groups.

19. Hasim, Naved, Imran, Juned and Mohsin were on one side

and appellant nos. 1 and 2 were on other side. In the scuffle, both

groups beat each other. Appellant no. 2 Nihal during the scuffle took

out knife and gave blow on the chest of deceased Naved. Situation on

the spot show that five persons on one side and only two brothers were

on other side. Therefore, appellant no. 2 to save himself from the five

persons take out the knife and gave single blow. Medical Officer also

noted only one injury. Therefore, it is clear that whatever incident took

place was in sudden fight between the two groups. If Nihal would not

have inflicted any injury to deceased Naved then all five persons (P.Ws.

17 jg.apeal.184.17.odt

and deceased) might have caused grievous injuries to both the brothers

(appellants). Moreover, appellant no. 2 gave single blow by knife.

Hence, it cannot be said that he had any intention to kill deceased

Naved. Had it been so, appellant no. 2 would have inflicted more

injuries to deceased.

20. Nothing is brought on record in the evidence of any of the

witnesses to show that there was any enmity between appellant no. 2

and other five persons. On the other hand, it appears from their

evidence that they were not knowing appellant no. 2 till the time of

incident. It appears from the situation stated by the witnesses that all

five persons were on the spot. Appellant no. 1 Sarang might have

thought about something will happen, therefore, he called his brother

for help. Therefore, it is clear that appellant Nihal had no intention to

kill Naved who was not known to him prior to the incident. Hence, the

act of appellant no. 2 Nihal comes under Section 304 Part II of the

Indian Penal Code. Hence we pass the following order.

                                            ORDER

       (i)      The appeal is partly allowed.

       (ii)     The impugned judgment is hereby quashed and set aside.





                                         18                           jg.apeal.184.17.odt

(iii) Appellant no. 1 Sarang s/o Kailash Zade is hereby acquitted

of the offences punishable under Sections 302 and 324 read with

Section 34 of the Indian Penal Code.

(iv) Appellant no. 2 Nihal s/o Kailash Zade is acquitted of the

offence punishable under Section 324 read with Section 34 of the

Indian Penal Code.

(v) Appellant no. 2 Nihal s/o Kailash Zade is acquitted of the

offence punishable under Section 302 read with Section 34 of the

Indian Penal Code, instead, he is convicted for the offence

punishable under Section 304 Part II of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for five years.

(vi) Appellant no. 1 Sarang s/o Kailash Zade is on bail. His bail

bond stands cancelled.

(vii) R & P be sent back to the trial Court.

(viii) Muddemal property, if any, be destroyed after expiry of

appeal period.

                       JUDGE                                JUDGE
wasnik