Gopal S/O. Janrao Sarap (In Jail) vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 11103 Bom

                                                     1                     apeal106.18.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                        CRIMINAL APPEAL NO. 106/2018

      Gopal s/o Janrao Sarap,
      aged about 30 years,
      r/o Gram Chikhalgaon,Tq.Dist.Akola.                     .....APPELLANT

                               ...V E R S U S...

      The State of Maharashtra,
      through Police Station Officer,
      Police Station, Patur, Dist. Akola.                     ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. R. M. Daga, Advocate for appellant.
 Mr. T. A. Mirza, A.P.P. for respondent-State.
 -------------------------------------------------------------------------------------------
                                CORAM:- V. M. DESHPANDE AND
                                               AMIT B. BORKAR, JJ.
                                DATE:-         AUGUST 17, 2021

 JUDGMENT (Per: V. M. Deshpande, J.)

1. The appellant was charged in Sessions Trial No.

108/2014 by learned Sessions Judge, Akola that on 23.12.2013 at

about 04.00 to 04.30 p.m., the appellant has committed murder of

Mukesh Madhukar Pendharkar by stabbing ken-sword (gupti)

thereby committing an offence punishable under Section 302 of

the Indian Penal Code. He was also charged that he had assaulted

on his mother Sunanda by ken-sword causing injury to her person

with such intention or knowledge and under such circumstances

that if by that act he had caused death of his mother and he would

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have been guilty of committing an offence punishable under

Section 307 of the IPC. He was also charged for causing hurt to

one Vilas Wankhade on his right hand by ken-sword and thereby

committed an offence punishable under Section 324 of the IPC.

Appellant denied charge and claimed for his trial. The

prosecution, to prove charge has examined 19 witnesses and also

relied upon various documents duly proved during the trial.

2. After a full fledged trial, learned 4 th Additional Sessions

Judge, Akola found that the prosecution has proved the charge

against the appellant and convicted him for the offence punishable

under Section 302 of the IPC, directing him to suffer

imprisonment for life, convicting him for the offence under

Section 307 of the IPC with a direction to suffer rigorous

imprisonment for seven years and also convicting him for the

offence punishable punishable under Section 324 of the IPC and

directing him to suffer rigorous imprisonment for one year. He

was also convicted for the offence punishable under Sections 4

and 25 of the Arms Act and was directed to suffer rigorous

imprisonment for three years.

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3. Manoj (PW1) and Satish (PW2) are real brothers of

deceased Mukesh. Manoj (PW1) has lodged oral report Exh.-21.

The printed FIR is at Exh.-22.

Both these witnesses have deposed on the line of FIR.

From the FIR as well as from their substantive evidence, it is clear

that they are not eye witnesses any of the incident for which the

appellant was charged.

According to their evidence, on 23.12.2013 information

was received by them from one Santosh that somebody has

assaulted their brother Mukesh at village Chikhalgaon.

Immediately, they reached there and found minidoor vehicle of

their brother Mukesh standing on Akola-Patur road at Chikhalgaon

bus stand and their brother Mukesh was lying in the injured

condition. According to them, when they asked him about incident

upon their inquiry, he replied that he was proceeding from Patur

with some equipment of M.S.E.B. He also told that when he

reached at Chikhalgaon bus stand, one Gopal Sarap-appellant

signaled him by showing his hands to stop the vehicle and asked

to take his mother to hospital in minodoor vehicle. Mukesh also

told him that he informed Gopal that his vehicle is fully loaded

with equipment of M.S.E.B. Therefore he should see another

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vehicle. On this reply being given by him, Gopal took out Gupti

and assaulted him. Deceased Mukesh also told him that when he

shouted for help as, "Wachwa, Wachwa", accused Gopal ran away.

4. After the crime was registered, investigation started.

Sanjay Khandekar (PW17) has done investigation of Crime

No.185/2013, which was registered on the basis of report lodged

by Manoj. Accused was arrested by PSI Sathawane under arrest

panchanama Exh.-93. When the accused was in custody, Sanjay

Khandekar (PW17) seized his clothes under seizure panchanama

Exh.-43. During his PCR, he also shown his readiness to give

discovery statement and accordingly, it was reported in presence

of pancha witness Gajanan (PW4). Admissible portion of

memorandum panchanama is at Exhs.93 and 94 and accordingly,

he took out the ken-sword. Investigating Officer also recorded

statement of various witnesses. All the pancha witnesses examined

to prove various seizures have supported the prosecution and

those are duly proved.

5. The autopsy was performed by Dr. Chaitanya Kulkarni

(PW11). He found following two injuries:

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"Injury no.1 - Incised penetrating stab wound over chest 3.5 cm below supra sternal notch, horizontal place, gaping of edges and margin giving wound spindle shape of size 2 cm X 1 cm X cavity deep wound situated 9 cm above and medial to left nipple, reddish.

Injury no.2- Incised penetrating stab wound over left hypocondrium region of abdomen 21 cm below left nipple, 10 cm lateral to midline and 12 cm above and lateral to umblicus, muscle deep, 1 cm X 05 cm gaping reddish. Above mentioned injuries are ante-mortem."

Post mortem report is at Exh.-64. Cause of death in the

opinion of the autopsy surgeon was as under:

"Cardiac temponade due to hemopenicardium due to stab injuries over left ventricle as result of stab injury over chest. (unnatural)"

Dr. Kulkarni also examined gupti, which was sent to

him for giving opinion as to whether the injuries found during

post mortem are possible by that weapon. He gave his report

Exh.-65 in affirmative.

6. We have seen that one of the charges framed against

the appellant was that he has assaulted on his mother Sunanda as

6 apeal106.18.odt

well as one Vilas. They were examined by Dr. Deepa Wase

(PW12). Her evidence would show that on examining Sunanda,

she found cut lacerated wound of 1.5 cm X 05. cm with cavity

deep on abdomen. She issued certificate Exh.-72 and referred her

for surgery. Dr. Deepa's evidence also shows that she examined

Vilas Wankhade, who was brought to her by police and she found

cut lacerated wound of 0.5 cm X 0.1 cm on anterior middle aspect

of right arm on middle area. She accordingly issued certificate,

Exh.-71.

There is an evidence of Dr. Avinash Telgote (PW10),

who has performed surgery on Sunanda.

7. It would be useful to first examine about the assault

made by the appellant on Vilas. The prosecution has examined

Vinod Nikhade (PW15), a police personnel, who was at Police

Station, Patur and was discharging duty as Station Diary Incharge

on 23.12.2013. As per his evidence, on that day, between 03.00

to 3.30 p.m. Vilas came to Police Station in the injured condition.

He was having bleeding injuries. According to Vinod (PW15), he

took station diary entry and referred Vilas (PW7) to the hospital.

7 apeal106.18.odt

8. Surprisingly, no report of Vilas was taken by Police

Officer Vinod (PW15). It would be useful to refer to his evidence

as appearing in his cross-examination, which is as under:

"I did not obtain the report of (PW7) Vilas. It is true to say that, it is cognizable offence. There are no reason as to why I have not registered the crime in that regard. It is true to say that at Ex.70, there is no mention of station diary entry number and time. It is true to say that there is also not mentioned, name of non applicant. It is true to say that today I have not brought the station diary entry with me...."

It is really hard to believe that police officer, before

whom a person is coming injured condition, is not making inquiry

and no offence is registered.

9. Vilas was examined as Prosecution Witness No.7. He

has not supported the prosecution case at all that he was assaulted

by the present appellant. As per his evidence, scuffle was going

on the spot of the incident in between animals and one goat had

given dash to him, resulting into he falling on the ground and

having injuries on his person.

It is not the prosecution case that the place of the

assault on Vilas and place of the assault on deceased is one and

8 apeal106.18.odt

the same. Still for the reasons best known to the prosecution, the

prosecution has not brought on record spot panchanama of the

alleged assault made by appellant on Vilas. Further, Dr. Deepa

(PW12), who had examined Vilas and Sunanda did state that

police did not send any weapon to her by seeking her opinion as

to whether the injury is possible by the weapon. Further, she has

candidly admitted in her evidence that the injury suffered by Vilas

was simple injury.

10. In absence of spot panchanama on record and looking

to the fact that the injured person himself is not supporting the

prosecution, we are of the view that the prosecution has not

proved its charge positively qua assault made on Vilas. Therefore,

we have no hesitation in our minds to record a finding that the

learned Judge has committed an error in convicting the appellant

for the offence punishable under Section 324 of the IPC.

11. We have already seen the injuries as stated by

Dr.Deepa (PW12) on the person of Sunanda, mother of the

appellant. Sunanda was also examined by the prosecution as

Prosecution Witness No.8. She has also not supported the

9 apeal106.18.odt

prosecution in respect of the alleged assault made on her by her

son, the appellant. According to her evidence, on 23.12.2013, she

fell down from the ladder and received injuries. Dr. Deepa

(PW12) in her evidence did state that the injury no.1 as shown in

certificate Exh.-72 was not on vital part of Sunanda. She also

states that it could happen if any person falls on objects such as

nails, broken pieces of glass or piece of tin.

12. Dr. Avniash (PW10) performed operation on Sunanda.

He stated as under:

"It is correct to say that, CLW can be possible by hard and blunt object as well as by falling on the hard and rough surface. It is correct to say that in case when any person fall on sharp pointed object like broken piece of glass, metal piece, long iron nail, etc., he may sustain stab injury..."

13. According to prosecution case, the incident of allegedly

stabbing to Sunanda occurred somewhere else than the place

where deceased was assaulted. From the tenor, it is clear that the

assault was made on Sunanda at her house. However, for the

reasons best known to prosecution, spot panchanama of alleged

incident was not recorded. Therefore, everyone is in dark

10 apeal106.18.odt

whether on the spot there were articles which could cause injuries

as stated by the doctor.

14. In this background, merely because Sunanda was not

supporting the prosecution, she cannot be said to be a witness to

the truth. In that view of the matter, in our considered view, the

learned Judge of the Court below erred in recording a finding that

the appellant is found to be guilty for the offence under Section

307 of the IPC.

15. Now, lastly, we have to deal with the prosecution case

in respect of the assault made on the deceased Mukesh.

We have seen the injuries as stated in the post mortem

report Exh.-64. From the said, it is clear that the deceased died

unnatural death.

16. In this case, we have the evidence of Manoj Pendharkar

(PW1) and his brother Satish Pendharkar (PW2). They are real

brothers of deceased Mukesh. Merely because they are brothers of

deceased their evidence need not be viewed from the tainted

glasses. Merely because they are brothers, their evidence need

11 apeal106.18.odt

not be discarded as evidence of interested witnesses as argued by

the learned counsel for the appellant. If the Court could reach to

the conclusion, after appreciating their evidence, that their

evidence is found to be trustworthy and free from embellishment,

their evidence could be considered for recording conviction.

17. In the earlier part of this judgment, we have already

reproduced what was stated to them by the deceased when they

reached to the spot. Statement made by the deceased to these

two brothers is an oral dying declaration. There has nothing

emerged during the cross-examination of these two witnesses to

raise any suspicion that the deceased was not able to give his oral

dying declaration to them.

18. Further, in this case, the prosecution has examined one

Ravindra Mesare (PW3). He is not connected either with the

deceased or with the appellant. Thus he is an independent

witness. His evidence would show that he has engaged in the

business of selling fish and he used to sell fish at Akola. According

to him on 23.12.2013, he had been to Akola on his motorcycle for

collecting the amount of his business and then he proceeded

12 apeal106.18.odt

towards Patur. His evidence would show that he reached to

Chikhalgaon between 03.00 to 04.00 p.m. where people were

gathered. It was his thought that some quarrel was going on.

Therefore, he stopped the vehicle and noticed one minidoor was

stopped there and Mukesh, the deceased was sitting on the

driver's seat. Appellant-Gopal resident of Chikhalgaon was

quarreling with Mukesh. He was asking the deceased to take his

mother to Akola hospital as she was injured. Deceased Mukesh

told him that there were articles from M.S.E.B. in his vehicle and

hence he should arrange another vehicle. People from the crowd

told Gopal to go home, they will admit his mother to hospital.

According to Ravindra's version, Gopal asked as to how the

deceased was not taking his mother to hospital and thereafter he

took out gupti and assaulted on the deceased.

The corroborative piece of evidence in the nature of

Chemical Analyser's report Exh.-114 is also supportive of the

prosecution case.

19. Evidence of Ravindra (PW3), the person who alone was

examined as eye witness, is found to be trustworthy coupled with

the oral dying declaration made by deceased to his two brothers

13 apeal106.18.odt

Manoj (PW1) and Satish (PW2) allows us to reach to the

conclusion that it is the appellant, who has assaulted upon the

deceased by means of Gupti.

20. Now, we have to reach to the conclusion whether the

appellant can be punished for the offence under Section 302 of the

IPC or any other lesser offence, as argued by the learned counsel

for the appellant.

21. Admittedly, there was no previous enmity between the

appellant and the deceased. Admittedly, mother of the appellant

was having some injuries on her person. Admittedly, as per the

oral dying declaration as well as eye witness account, appellant

Gopal was asking and requesting the deceased driver to allow him

to take his mother in the vehicle, which was not permitted as there

were some articles in the vehicle belonging to the M.S.E.B. Be

that as it may, there was no predetermination of the appellant to

cause death. It appears that the appellant got flared up because of

refusal by the deceased in respect of taking his mother to the

hospital and therefore in the spur of moment, the appellant has

assaulted on him. Therefore, in our view, this particular case falls

14 apeal106.18.odt

in exception-IV of Section 300 of the IPC. Further, according to

the autopsy surgeon, injury no.2 is a simple injury.

22. Since the incident has occurred at the spur of the

moment without there being any intention on the part of the

appellant to commit murder of the deceased, we are of the view

that though the appellant has assaulted upon the deceased

attracting lesser punishment instead of offence punishable under

Section 302 of the IPC. According to us, the case will fall under

Section 304-II of the IPC. From the impugned order, it is clear

that the appellant is in jail from 28.12.2013 till the decision of the

trial. Even during the pendency of the appeal, the appellant was

not released on bail. Consequently, we pass the following order.

                               ORDER

        (i)            The appeal is partly allowed.


        (ii)           The judgment and order of conviction

passed by the learned 4th Additional Sessions Jude, Akola, on 25.01.2018 in Sessions Judge, Akola on 25.01.2018 in Sessions Trial No.108/2014, convicting the appellant for the offence punishable under Sections 302, 307 and 324 of the Indian Penal Code is hereby quashed and set aside.

                                             15                  apeal106.18.odt

        (iii)          Instead, appellant-Gopal s/o Janrao Sarap

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

(iv) The appellant is in jail from 28.12.2013. In our considered view the punishment for the offence under Section 304 Part II will be the jail period for which the appellant has already undergone from 28.12.2013.

(v) The appellant, who is in jail, shall be released forthwith, if not required in any other offence.

                      JUDGE                             JUDGE



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