Suresh Waman Manchalwar (In Jail) vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 11208 Bom

                                            1                               cr-appeal-127-18j.odt



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

                        CRIMINAL APPEAL NO. 127 OF 2018


  Suresh Waman Manchalwar,
  Aged 55 years, Occ. Labour,
  R/o. Diamond Nagar, Nagpur
  (Presently Central Prison, Nagpur)                                        . . . APPELLANT

                         ...V E R S U S..

  The State of Maharashtra through
  P. S.O., Police Station, Nandanvan,
  Nagpur.                                                              . . . RESPONDENT

 ------------------------------------------------------------------------------------------------
 Shri Sumit Joshi, Advocate (appointed) for appellant.
 Shri S. M. Ghodeswar, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 18.08.2021

ORAL JUDGMENT (PER : V. M. DESHPANDE, J.) :-

1. Heard.

2. The present appeal is directed against the judgment and

order of conviction dated 09.08.2016 passed by learned Additional

Sessions Judge, Nagpur in Sessions Case No. 359/2015. By the

impugned judgment and order of conviction, the appellant stands

convicted for the offence punishable under Section 302 of the Indian

2 cr-appeal-127-18j.odt

Penal Code and directed to suffer life imprisonment and to pay fine of

₹ 1,000/- with default clause. 1,000/- with default clause.

3. The prosecution's case, as it was disclosed during the

course of the trial, is as under:-

Mahendrasingh Thakur (PW9) was attached to Police

Station, Nandanwan and he was Day Officer on 25.05.2015 and his

duty hours were from 9.30 a.m. to 9.30 p.m. During his duty period,

he received information that in New Diamond Nagar, Nandanvan the

incident of murder has occurred. He therefore, immediately rushed to

the spot alongwith with his staff and there he noticed gathering of

persons. He noticed that one Sandip Choudhary was lying in the dead

condition in his house and also noticed injuries on his person. He,

therefore, immediately prepared Spot Panchnama (Exh.20). Umesh

Daf (PW2), one of the panch, in whose presence the Spot Panchnama

was prepared. He also seized two glasses, one bottle containing liquor

and one utensil. Those articles were seized and mentioned in the Spot

Panchnama itself. Thereafter, he sent the dead body to the

Government Medical College, Nagpur for post-mortem. He registered

the crime on the basis of the report lodged by Kalpana Sandip

Choudhary (PW1). The printed First Information Report (FIR) is at

Exh.18. He registered offence against the present appellant vide Crime

3 cr-appeal-127-18j.odt

No. 196/2015, dated 25.05.2015 for the offence punishable under

Section 302 of the Indian Penal Code.

4. Kalpana Choudhary (PW1), wife of deceased- Sandip

Choudhary, lodged her oral report (Exh.17). The report would show

that her husband (the deceased) used to undertake the work of

painting. On 25.05.2015, the deceased was present in the house itself.

It is also stated that Suresh Manchalwar (the appellant), who resides in

front of the house of the informant used to regularly visit her house.

The report further states that on the date of incident at 6 O'Clock in

the morning, the first informant went for her work, who used to do the

work of utensils cleaning and as a cook. The report further states that

at 11 a.m., when she came back to the house, she noticed that her

husband and the appellant were having liquor party. The report

further states that at 11.30 a.m., the first informant left her house for

her further work and at that time, as per the FIR, both the deceased

and the appellant were continue with drinking liquor and they were

quarreling with eachother therefore, she asked the appellant, if he

wants to quarrel with her husband, he should not visit her house.

5. The FIR further states that at 3.15 p.m., when she came

back that time her house was found latched from outside. She opened

the door and noticed that her husband was oozing with blood. She

4 cr-appeal-127-18j.odt

therefore, immediately intimated the said fact to her sister-in-law -

Vandana Choudhary (PW5).

6. The crime, which was registered by Mahendrasingh

Thakur (PW9), its further investigation was entrusted with Yogesh

Ingle (PW10). The Investigating Officer arrested the appellant under

arrest panchnama (Exh.36). After completion of the usual

investigation, the Investigating Officer filed challan in the Court of

learned jurisdictional Magistrate. The learned Magistrate found that

the offence is exclusively triable by the Court of Sessions, he therefore

committed the said case to the Court of Session. After the case was

committed to the Court of Sessions, it was registered as Sessions Trial

No. 359/2015. The learned Additional Sessions Judge, Nagpur framed

charge (Exh.2) against the appellant for the offence punishable under

Section 302 of the Indian Penal Code. The appellant pleaded not

guilty and claimed for trial.

7. During the course of the trial, in order to bring home the

guilt of the appellant, the prosecution examined in all 10 witnesses

and also relied upon various documents, which were duly proved in

the course of the trial. After examining the accused under Section 313

of the Code of Criminal Procedure and after hearing the Advocate for

5 cr-appeal-127-18j.odt

the accused, the learned Judge passed the impugned judgment and

order. Hence, this appeal.

8. We have heard Shri Sumit Joshi, learned Advocate, who is

appointed by Legal Aid Committee to provide legal assistance to the

appellant, since he was unable to engage Advocate privately. We have

also heard Shri S. M. Ghodeswar, learned A.P.P. for respondent/State in

extenso. With the assistance of both these learned Advocate, we have

gone through the paper-book and also the relevant documents from

the Record and Proceedings. According to the learned Advocate for

the appellant, there was no motive on the part of the appellant to

commit murder of the deceased. He, therefore, submitted that offence

against the appellant can be scale down.

9. PW8 is Dr. Hrishikesh Vinayak Pathak. In the year 2015,

he was working in the Department of Forensic Medicine at

Government Medical College, Nagpur. On 26.05.2015, he received

requisition for conducting post-mortem on the dead body of Sandip

Choudhary. The dead body of the deceased was brought to him by the

Police Station Officer of Police Station Nandanwan, Nagpur. Dr. Pathak

(PW8) conducted autopsy over the dead body of the deceased. While

conducting the post-mortem, Dr. Pathak (PW8) found following nine

external injuries, which are as under :-

                                          6                            cr-appeal-127-18j.odt


                   "(1)    Stab wound prsent over anterior aspect of Chest, at

the level of left nipple, 2.5 cm from mid line of size 2 cms X 1 cm X cavity deep, horizontal, margins, clean at both hands, sharp, directed backward laterally and straight; (2) Stab would present, 1.5 cm. Lateral and 1 cm. Above injury no. 1 of size 2 cm X .7 cm X cavity deep, vertical, margins, clean cut, both and sharp, directed backward downward and straight, (3) Stab would present 4 cm below injury no. 1 of size 2 cm X 1 cm X cavity deep, horizontal margins, clean cut, both ends sharp, directed backward and straight. (4) Stab wound present 1 cm below 1 to 3 cm lateral to injury no. 3 of size 2 cm X .7 cm X cavity deep, horizontal, margins, clean cut, both end sharp, directed backward and straight.

(5) Incised wound present over area overlying body of sternum, 14 cm below supra sternal notch, of size 1 cm X .5 cm X bone deep, horizontal, (6) stab wound present over right anterior aspect of trunk 20 cm., below supra-sternal notch and 2.5 cm from mid line, of size 2.5 cm X 1 cm X cavity deep, horizontal, margins, clean cut, both ends sharp, directed downward, laterally and backward, (7) Incised would present over dorsum of right hand of size 1 cm X 0.3 cm X muscle deep, vertical, (8) Incised wound present over posterior aspect of left fore-arm, lower 1/3rd,of size 2.5 cm X 1 cm X muscle deep, vertical;

(9) incised wound present over posterior aspect of left forearm, upper 1/3rd, of size 1.5 cm X 0.5 cm X muscle deep, vertical."

He also on internal examination of the body of the

deceased found that there were stab wounds over pleura left lung,

7 cr-appeal-127-18j.odt

pericardium and heart and these injuries are mentioned in column no.

20 of the post-mortem report. The post-mortem report is at Exh.39.

According to Dr. Pathak (PW8), the stab injuries were on the vital part

of the body resulting into the death.

10. From the post-mortem report (Exh.39) and from the

evidence of Dr. Pathak (PW8), there is no doubt in our minds that

Sandip Choudhary died homicidal death. Once, we reached to the

conclusion that the deceased died unnatural death that too homicidal,

the next question falls for consideration is that who is the author of the

injuries found on the body of the deceased resulting into his death.

According to the prosecution, it is the appellant, who is the author and

who has caused the death of the deceased.

11. True it is that there is no eye-witness account in this

prosecution's case. The prosecution is heavily relied upon the evidence

of Kalpana Choudhary (PW1), wife of the deceased, who testifies from

the witness box in conformity with her FIR statement. The FIR is

never a substantive piece of evidence, which can be used either for

corroboration or contradicting the evidence of the prosecution.

Kalpana Choudhary (PW1) from the witness box corroborated her FIR

statement and not only that nothing is brought on record during her

searching cross-examination. From the evidence of Kalpana Choudhary

8 cr-appeal-127-18j.odt

(PW1), who supported her earlier statement in the nature of the FIR

that the deceased was found in the company of the appellant lastly

inside the house of the deceased. Not only that, they were drinking

liquor together.

12. At this stage, we would like to mention that after the post-

mortem was conducted, the autopsy surgeon preserve the viscera,

which was sent for chemical analysis. The C.A. report about the

viscera is at Exh.11. It shows that Chemical Analyzer found 106 mg

and 92 miligrams of Ethyl Alcohol per 100 grams respectively in the

stomach as well as in pieces of liver, spleen and kidney. In our view,

this particular scientific evidence corroborates the evidence of Kalpana

Choudhary (PW1) that when she left her house that time the appellant

and the deceased were drinking liquor in eachother's company.

13. Even the evidence of Vandana Choudhary (PW5), who is

sister-in-law of the Kalpana Choudhary (PW1), shows that the

appellant is neighbour and he used to frequently visit the house of the

deceased. Not only that on the day of incident, as per the unchallenged

evidence of Vandana Choudhary (PW5), during 10 a.m. to 12 p.m. the

appellant was present inside the house of the deceased. Prabhawati

Dhakate (PW6), who is the another neighbour also stated on oath that

on the day of the incident, the appellant was taking round from his

9 cr-appeal-127-18j.odt

house to the house of the deceased. Her evidence also shows that on

earlier occasion, the wife of the deceased complaint to this witness that

the appellant used to give liquor to her husband when she used to go

outside.

14. From the evidence of Vandana Choudhary (PW5) and

Prabhawati Dhakate (PW6), it is clear that the appellant was not

unknown to the family of the first informant and not only that their

evidence further corroborate the evidence of Kalpana Choudhary

(PW1) about joint drinking on earlier occasion by the deceased and the

appellant.

15. Another circumstance that has been pressed into service

by the prosecution is the extra-judicial confession made by the accused

with Mukund Deshpande (PW3), who works as Security Guard. He

know both the deceased as well as the appellant. He did stated in his

evidence that that on various occasion he used to pull cycle rickshaw

and the appellant also used to pull cycle rickshaw and that was the

reason for his acquaintance with the appellant. According to Mukund

Deshpande (PW3), on 25.05.2015 i.e. on the date of the incident itself,

the appellant met him in between 12.00 to 12.15 noon and at that

time he made extra-judicial confession with him that he has killed one

person. According to Mukund Deshpande (PW3), thereafter he

10 cr-appeal-127-18j.odt

proceeded to the shop of Namdeo Nikhade (PW7), who works as

puncturewala. Namdeo Nikhade's (PW7) evidence also corroborated

Mukund Deshpande (PW3) statement that the appellant discloses

about the act done by him to the deceased.

16. We are aware that extra-judicial confession by itself,

though is a weak piece of evidence but, that can be used against the

accused person if it is corroborated by other surrounding evidence.

17. In this case after the arrest of the appellant, when he was

in police custody, he made disclosure statement under Section 27 of

the Evidence Act in presence of Chandan Varma (PW4). The disclosure

statement is at Exh.26 that lay the police party to the house of the

appellant. From inside the house, the appellant took out knife. The

knife was having blood stains. In presence of the panchas, the knife

was seized and sealed, as it can be seen from the document - Recovery

Panchnama (Exh.27). The clothes of the accused were also seized

under the Seizure Panchnama (Exh.36). The Exh.36 would show that

when the appellant was arrested, at that time the clothes of the

accused were also seized.

18. The weapon was sent to Dr. Pathak (PW8) seeking his

opinion as to whether the injuries found on the deceased can be

caused by the said weapon. Dr. Pathak (PW8) received the requisition

11 cr-appeal-127-18j.odt

for Query Report on 05.06.2015 alongwith the knife in sealed

condition. He gave Query Report (Exh.40) and opined that the injuries

mentioned in column no. 17 of the post-mortem report are possible by

the weapon sent to him for examination. After the examination of the

weapon, he again re-sealed the same and handed over it to the PSI,

who was on duty. The C.A. report (Exh.9) shows that the weapon was

having human blood, though the blood group could not be determined.

Similarly, the clothes of the appellant were also having human blood

and for that he could not furnish any explanation.

19. The evidence as brought on record, in our view, complete

the chain which show the guilt finger towards the appellant. Once, it

is held that the appellant is the author of the injuries received by the

deceased, the next question would be which offence the appellant has

committed.

20. There is nothing in this prosecution case that there was

enmity between the deceased and the appellant. On the contrary,

consistent evidence show that they were having friendly relation, not

only that they used to have liquor party jointly in the house of the

deceased. Even on the date of incident, as per the prosecution case

and which is very much clear and duly approved by Kalpana

Choudhary (PW1) and other prosecution witnesses, the appellant and

12 cr-appeal-127-18j.odt

the deceased having liquor party inside the house of the deceased.

From the evidence and the FIR, it is clear that when Kalpana

Choudhary (PW1) left her house for her further work and after work

she reached her house at 11.30 p.m., she found that while drinking

liquor both the appellant and the deceased were quarreling with

eachother.

21. In view of these evidence, we have no hesitation in our

minds that the present case of the prosecution falls within Exception- 4

of Section 300 of the Indian Penal Code since, there was no intention

on the part of the appellant to commit murder of Sandip Choudhary

(deceased). The deceased and the appellant, while they were drinking

liquor, there appear that a quarrel erupted in between them and which

was also proved by Kalpana Choudhary (PW1) and in that the

appellant has assaulted on the deceased.

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

appellant can be though acquitted under Section 302 of the Indian

Penal Code but, he can be punished for the offence punishable under

Section 304, Part-I of the Indian Penal Code since, he has assaulted on

the vital part of the body of the deceased resulting into injury and

which resulted into the death of Sandip Choudhary.

13 cr-appeal-127-18j.odt

23. In view of the above, we pass the following order:

(i) The judgment and order dated 09.08.2016 passed by

learned Additional Sessions Judge, Nagpur convicting the appellant for

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

hereby quashed and set aside and instead the appellant is convicted for

the offence punishable under Section 304, Part-I of the Indian Penal

Code and for that he is directed to suffer rigorous imprisonment for 10

years.

(ii) The appellant, who is in jail, shall be released as soon as

he complete 10 years of actual imprisonment.

(iii) Shri Sumit Joshi, learned Advocate appointed by the Legal

Aid Committee is entitled for his professional charges from the Legal

Aid Committee and which quantify to Rs. 5,000/- (Rs. Five Thousand).

(iv) The appeal is partly allowed in the above terms.

                               JUDGE                                  JUDGE




RR Jaiswal