Hansaraj S/O. Ishwar Parekar (In ... vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 11540 Bom

                                                     1                     apeal244.18.odt


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

                        CRIMINAL APPEAL NO. 244/2018

      Hansraj s/o Ishwar Parekar,
      aged about 36 years, Occ. Driver,
      r/o Shalikram Nagar, Ghuggus,
      Tq. Dist. Chandrapur.                                   ...APPELLANT

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

      The State of Maharashtra through
      Police Station Officer, Police Station,
      Ghuggus, District Chandrapur.                           ...RESPONDENT

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

DATE:- AUGUST 23, 2021

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

1. By this appeal, appellant is challenging judgment and

order dated 21.03.2018 passed by learned Additional Sessions

Judge, Chandrapur in Sessions Case No.109/2016 whereby the

appellant stands convicted for the offence punishable under

Sections 307 and 302 of the Indian Penal Code. For his conviction

under Section 307 of the IPC, learned Judge imposed punishment

of rigorous imprisonment for seven years and to pay a fine of

Rs.1,000/- in default to suffer simple imprisonment for ten days.

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For his conviction under Section 302 of the IPC, the

sentence imposed is sufferance of rigorous imprisonment for life

and to pay a fine of Rs.1,000/-, in default to suffer simple

imprisonment for 10 days.

2. We have heard Mr. R. M. Daga, learned counsel for the

appellant and Mr. T. M. Mirza, learned A.P.P. for the State, in

extenso. With their able assistance, we have also perused the

record and proceedings. The learned counsel for the appellant

submitted, by pointing out to the evidence of Prakash Sarode

(PW3) and Yogesh Sarode (PW5) and also recitals in statement of

Madan Rjagade (PW2), the injured and father of deceased

Pandurang, Exh.-24, which was recorded at Shweta Hospital,

Chandrapur, on the basis of which ultimately, crime was

registered, submitted that in any case, the appellant cannot be

convicted for the offence punishable under Section 302 of the IPC.

He submitted that this is a fit case wherein the Court can impose

punishment on him for the offence punishable under Section 304-I

of the IPC.

Per contra, learned A.P.P. vehemently opposed this

submission.

3 apeal244.18.odt

3. To appreciate the contention of Mr. Daga, learned

counsel for the appellant, we will have to appreciate the aforesaid

submission in the backdrop of the prosecution case, which was

unfolded during the course of the trial.

4. PSI Santosh Jadhav (PW14), in the month of June-

2016, was attached to Police Station, Ghuggus, District

Chandrapur. On 10.07.2016, at about 6.30 p.m. a phone call was

received at Police Station about the incident. The said PSI along

with duty officer and other staff, immediately went to Primary

Health Centre, Ghuggus whereat he found that the doctor was not

present. Therefore, along with duty officer API Dolare, the

relatives went to Shweta Hospital by ambulance taking two

injured Pandurang Rajgade (deceased) and Madan Rajgade

(injured).

5. At Shweta Hospital, Chandrapur, Dilip Dolare (PW15),

as per directions given to him by PSI Jadhav (PW14), recorded

statement of Madan Rajgade, Exh.-24. On the basis of the

statement, initially a crime was registered at Police Station,

4 apeal244.18.odt

Ghuggus, vide Crime No.461/2016 for the offence punishable

under Section 307 of the IPC. The printed FIR is at Exh.-53.

6. In the meanwhile, PSI Jadhav, after reaching to the

spot of incident, prepared the spot panchanama in presence of

pancha witness Tirupati Lakkakula (PW1). The spot panchanama

is at Exh.-15. He also seized various articles which were found on

the spot under seizure panchanama, Exh.-16, which includes;

Chappal and simple as well as blood smeared earth. The appellant

was arrested on 10.07.2016 itself. His clothes were seized under

seizure panchanama Exh.-17 i.e. Shirt having blood stains and one

full pant. During the course of investigation, on 13.07.2016,

under seizure panchanama, Exh.-18, blood samples of accused

was seized. Similarly, under seizure panchanama, Exh.-19, clothes

of deceased were seized so also clothes of injured Madan on

14.07.2016. Under Exh.-20, blood sample of deceased and injured

Madan were also collected and seized.

7. During the course of PCR, the appellant agreed to show

the place where he has concealed the knife used in commission of

the offence. The discovery statement was recorded in presence of

5 apeal244.18.odt

Tirupati (PW1). Admissible portion of statement of appellant

leading to discovery is at Exh.-21. Pursuant to the discovery

statement, police went to the spot, which was shown by appellant

who took out the knife, which was concealed beneath a Subhabul

tree under the iron bridge, on the spot itself. The knife was seized

and sealed. At the time of sealing, it was found that the knife was

having blood stains.

8. After completion of other usual investigation inclusive

of forwarding muddemal to Chemical Analyzer, Nagpur, the

investigating officer filed final report in the Court of learned

Judicial Magistrate First Class, Ghuggus who found that the

offence is exclusively triable by the Court of Sessions and

committed the case to the Court of Sessions. After committal, the

case was registered as Sessions Case No.109/2016. The learned

Additional Sessions Judge framed and explained the charge. The

appellant was charged for the offence punishable under Section

307 of the IPC for having made murderous assault on Madan

(PW2), whereas he was charged for the offence punishable under

Section 302 of the IPC for committing murder of Pandurang. The

appellant denied the charge and claimed for his trial.

6 apeal244.18.odt

9. In order to bring home guilt of the accused, the

prosecution has examined in all 15 witnesses and also relied upon

various documents duly proved during the course of trial.

10. Tirupati (PW1) is pancha witness. Madan (PW2) is

injured and father of deceased. Prakash Sarode (PW3) is the

witness who reached to the spot immediately and to whom the

deceased has made oral dying declaration. This witness has also

took Madan (PW2) and Pandurang (deceased) to the hospital by

auto rickshaw. Rekha Sarode (PW4) is wife of (PW3). As per her

evidence, she noticed both the injured and deceased lying inside

the house of the accused in injured condition. Evidence of Yogesh

Sarode (PW5) would show that he noticed appellant taking out

knife from the stomach of Pandurang. Shaikh Rafiuddin (PW6)

has not supported the prosecution at all and even during the

cross-examination by the learned A.P.P., nothing could be elicited

from his cross-examination. Anwar Hussain (PW7) is an auto

rickshaw driver in whose auto Prakash (PW3) took the injured as

well as the deceased to Rural Hospital. Dr. Amit Pawar (PW8) is

the doctor, who examined injured Madan Rajgade and issued

report, Exh.42. Evidence Dr. Ajay Sakhare (PW9) would show

7 apeal244.18.odt

that on 11.07.2016, in the morning Pandurang was brought in a

critical condition in ambulance at Wockhardt Hospital, Nagpur.

As per his evidence, Pandurang succumbed to his injuries on

12.07.2016 at 08:00 a.m. Accordingly, he informed to police and

issued death summary, Exh.-45. Dr. Manu Sharma (PW10), is an

autopsy surgeon who has conducted post mortem over the dead

body. Post mortem report is at Exh.-50. ASI Ashok Umap

(PW11), has followed the directions given to him by ASI Kolte,

who registered the crime. Vinod Mankar (PW12), is a

photographer who took photographs of spot of incident. Dr.Ritesh

Dixit (PW13), runs Shweta Hospital, whereat initially the injured

Madan and deceased Pandurang were admitted and exploratory

laprotomy was done on Pandurang. Ultimately, Pandurang was

transferred from his hospital to Wockhardt Hospital at Nagpur.

Santosh Jadhav (PW14) and Dilip Dolare (PW15) are the

investigating officers, who have done parts of their investigation.

11. Dr.Manu Sharma (PW10), is an autopsy surgeon who

has performed autopsy over the dead body and proved the post

mortem report Exh.-15, did state that he noticed following three

external injuries:

8 apeal244.18.odt

"i) Surgically steppled wound with 15 stepples placed vertically over the abdomen in the midline measuring 15 C.M starting 4 C.M below the xiphoid process & ending 5 C.M above pubic symphysis,

ii) Surgically sutured wound with intact sutures ad- measuring 6 C.M placed obliquely over the right side of the lower abdomen situated at 8 C.M lateral to umblicus on the right side. Opening of sutures revealed a stab wound measuring 4.5 C.M x 1.5 C.M x peritonial cavity deep.

iii) Surgically sutured wound with intact sutures measuring 6 C.M placed horizontally over the left side of the lower abdomen situated at 10 C.M lateral & 3 C.M below the umblicus on the left side. Opening of the sutures revealed a stab wound measuring 2.5 C.M x 1.5 C.M x muscle deep.

iv) Scratch abrasion reddish brown in colour measuring 5 C.M was present over the front of the right arm in its middle 1/3rd situated 12 C.M below the right shoulder deep."

In the cross-examination, the autopsy surgeon deposed

before the Court as under:

"It is true to suggest that the injury No.1 is surgical intervention whereas the injuries nos.2 & 3 are the repair of the stab wounds mentioned in my report in column No.17."

From the aforesaid, it is clear that there was a single

stab on the body of the deceased.

9 apeal244.18.odt

12. The prosecution has duly proved the memorandum

statement of appellant leading to recovery of weapon seized from

the spot, which is a secluded place and it was seized and sealed

from the spot itself. As per the C.A. report, Exh.-129, blood group

of Madan (injured) is "B". Similarly, the blood group of deceased

Pandurang is also "B", Exh.131. Similarly, the blood group of

deceased Hansraj is also "B", Exh.130. However, no injuries were

found on the person of the appellant at the time of his arrest.

Therefore, the possibility of his own blood noticing on his clothes

is completely ruled out. Exh.-111 is requisition given to the

Forensic Laboratory, Nagpur by investigating officer to whom all

muddemal articles were sent. C.A. report Exh.-128 shows that

blood was detected on the clothes of the appellant as well as on

the knife and on the shirt of the appellant. The blood of group "B"

was found which is in conformity with the seizure memo

panchanama Exh.-17. It shows that at the time of seizure of

clothes, the investigating officer and panchanama noticed blood

stains on the clothes of the appellant.

10 apeal244.18.odt

13. The question is whether the submission of learned

counsel for the appellant is required to be considered and whether

this finding can be converted from Section 302 to 304-I of the IPC,

which is a lesser offence.

14. From Exh.-24, statement of injured Madan which was

treated as FIR, it is clear that on 10.07.2016 at 6.30, when he was

returning from Patanjali Stores along with his granddaughter, the

appellant came to his house and gave abuses. As per the report,

therefore, the injured Madan dropped his granddaughter at his

house and came to the house of Hansraj in order to give him an

understanding. At that time, the appellant brought knife from

inside his house and assaulted on him. At that time, Pandurang

(deceased) came and he was also assaulted.

15. As per the evidence of Pramod (PW3), the incident in

question has occurred at the house of the accused. His evidence

would show that when he was washing chicken, he heard talks

between appellant and injured. However, he did not pay any

heed to it since it was a regular feature. However, after some

time, he heard loud noise and he went to the house of appellant,

11 apeal244.18.odt

where his wife was already present. He noticed complainant

Madan (PW2) lying near the wall inside the compound of the

appellant and he was holding his stomach and blood was oozing.

Similarly, deceased Pandurang was standing near him. Upon

inquiry, he told that he was assaulted by the present appellant.

16. As per Exh.-42, injured Madan (PW2) received two

stab injuries. Both were grievous. For that act, the appellant was

charged for the offence punishable under Section 307 of the IPC

and he was convicted and was directed to suffer rigorous

imprisonment for seven years. In the light of the evidence of

injured himself and Prakash (PW3) and in the backdrop of the

injury certificate, we are of the view that the learned Judge was

right in convicting the appellants for the offence punishable under

Section 307 of the IPC. So far as quantum of punishment of seven

years, the State did not file any appeal for enhancement of the

said sentence. So far as deceased Pandurang is concerned, it is

clear that the incident had occurred inside the compound of

appellant. That clearly shows that the deceased had been to the

house of the appellant. Not only that, from the evidence of

Prakash (PW3), Rekha (PW4) and Yogesh (PW5), a quarrel was

12 apeal244.18.odt

erupted between Madan (PW2) and appellant. Firstly, as per the

prosecution case, Madan (PW2) was assaulted and when the

deceased Pandurang tried to intervene, he was also assaulted. As

per the evidence of autopsy surgeon Dr. Manu Sharma (PW10),

the investigating officer gave a communication Exh.-47 for

obtaining his opinion as to whether the injuries found on the dead

body can be caused by a weapon, which was sent to him. The

letter is at Exh.-47. The query report is at Exh.-48. In the

examination-in-chief itself, Dr. Sharma stated as under:

"...P.S.I. S. K. Jadhav brought the kitchen knife for query & examination on 02.08/2016 at the hospital..."

17. Further, there is no evidence whatsoever in nature to

show that the appellant was nursing any grudge against the

deceased Pandurang and having intention to kill the deceased

Pandurang. From the prosecution case, it is clear that the injured

Mandan (PW2) reached to the house of appellant. There quarrel

took place between them. Pandurang tried to intervene, he was

assaulted. In that view of the matter, in our view, the present case

qua Padurang falls in Exception-IV of Section 300 of the IPC. In

our view, therefore, the submission of learned counsel for the

appellant needs favourable consideration.

13 apeal244.18.odt

18. The conspectus of the aforesaid discussion leads us to

pass the following order.

                                   ORDER

        (i)            The appeal is partly allowed.
        (ii)           Judgment and order of conviction dated

21.03.2018 passed by learned Additional Sessions Judge, Chandrapur in Sessions Case No.109/2016, thereby convicting appellant for an offence punishable under Section 307 of the IPC stands confirmed.

(iii) Judgment and order of conviction dated 21.03.2018 passed by learned Additional Sessions Judge, Chandrapur in Sessions Case No.109/2016, thereby convicting appellant for an offence punishable under Section 302 of the IPC is hereby set aside. Instead, the appellant is convicted for the offence punishable under Section 304-I of the IPC and for that, the sentence shall be ten years of actual imprisonment.

Both the sentences shall run concurrently. Needless to mention, the appellant will be entitled to set off.

                      JUDGE                               JUDGE



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