Vyankat @ Vyankatesh Chanchayya ... vs The State Of Maharashtra
2021 Latest Caselaw 8672 Bom

                                                                              apeal-1103.15, 680.15.doc




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                        CRIMINAL APPEAL NO.1103 OF 2015
Vyankat @ Vyankatesh Chanchayya Pinnam
Age about 46 years, Occ. Service,
R/at S.No.71, Balajinagar, Lane No.1,
Ghorpadigaon, Pune.                              Appellant
(and at present in judicial custody and lodged   (Orig. Accused
at Yerwada Central Prison, Pune)               ... No.1)
V/s.
The State of Maharashtra                                          ... Respondent
                                     WITH
                         CRIMINAL APPEAL NO.680 OF 2015
1.      Ramanayya Chanchayya Pinnam @
        Rakesh Hukumchand Khokar
        Age: abt 39 years, Occu. Service,
        R/at : S.No.71, Balajinagar, Lane No.1,
        Ghorpadigaon, Pune.

2.      Smt. Yangayya @ Yangamma
        Gurayya Battal
        Age : about 47 years, Occu.
        R/at : S. No.72, Gulmohar Park,
        Ghorpodigaon, Pune.
        (Presently in Yerwada Central Prison,                       Appellants
        Pune and Yerwada Women Prison, Pune                         (Orig. Accused
        respectively).                                            ... Nos.2 and 4)
V/s.
The State of Maharashtra                                          ... Respondent
                                      -------------------
Mr. Daulat G. Khamkar, Advocate for the Appellants in both the
Appeals.
Ms. P.P. Shinde, APP for the Respondent - State in both the Appeals.
                                     ---------------------

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                                     CORAM : SMT. SADHANA S. JADHAV &
                                             N.R. BORKAR, JJ.

JUDGMENT RESERVED ON : 24th JUNE 2021.

JUDGMENT PRONOUNCED ON : 1st JULY 2021.

JUDGMENT : (Per Sadhana S. Jadhav, J.)

1. The appellants herein are convicted for an offence

punishable under section 302 r/w 34 of Indian Penal Code by the

Additional Sessions Judge, Pune in Sessions Case No.790 of 2011 vide

judgment and order dated 3rd June 2015 and sentenced to suffer

imprisonment for life and shall pay fine of Rs.2,000/- each, i/d to pay

fine to suffer imprisonment for one year. Accused no.1 - Vyankat @

Vyankatesh Chanchayya Pinnam is also convicted under section 235(2)

of Cr.P.C. for the offence punishable under section 37(1)(3) and shall

suffer imprisonment for one year and shall pay fine of Rs.100/-, i/d. to

pay fine to suffer further imprisonment for one month. Hence, this

appeal.

2. It is the case of the prosecution that on 13 th September

2011, an information was received by Mundhawa Police Station that a

person named Narayan was brutally assaulted at Balajinagar. Devidas

Patil - P.W.9 who was officiating as P.I. at Mundhawa Police Station

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rushed to the spot and learnt that the injured was shifted to Sasoon

Hospital. There P.W.9 learnt that Vengayya Kandira (P.W.1), father of

Narayan had already reached the Police Station. P.S.I.Gite recorded the

statement of Vengayya Kandira (P.W.1) - first informant. On the basis

of his statement Crime No.133 of 2011 was registered against the

present appellants for the offences punishable under section 302 r/w

34 and section 504 of IPC. After completion of investigation, charge

sheet was filed. At the trial, prosecution examined as many as 10

witnesses to bring home the guilt of the accused.

3. Vengayya Kandira (P.W.1) happens to be the father of

deceased Narayan. The accused Vyankat Pinnam and Ramanayya

Pinnam happen to be brothers inter-se whereas Accused No.4 -

Yangayya Battal happens to be the sister of Accused Nos.1 and 2. The

acquitted Accused no.3 Vyankat Battal alias Ravan Gurayya Battal

happens to be the son of Accused no.4 - Yangayya. The deceased and

Accused no.1 happen to be residents of the same locality whereas

Accused no.2 happens to be the resident of Lane no.3.

4. According to P.W.1, on 13th September 2011 i.e. the

following day of Ganesh immersion, at about 9.00 am Narayan

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(deceased) had asked Guraiyya as to why he has abused his father.

There was some verbal altercation between them. P.W.1 had

intervened, pacified the parties and had told Ramanayya that he would

persuade his son Narayan to behave properly. At about 4.00 pm, on the

same day, when P.W.1 was at the well, his sister, Yangayya (Accused

No.4) along with her son Rawan met Narayan at the well. Narayan and

Rawan had again started quarreling. Rawan started beating Narayan

with his belt. P.W.1 had apologized to Rawan on behalf of his son.

5. On the same day, at about 7.45 pm, he had learnt

telephonically from his wife that Narayan was murdered. P.W.1

immediately reached his house. Upon learning that the injured was

shifted to Sasoon Hospital, he had visited Sasoon Hospital where he

met Shrinivasan and Navin. Navin happens to be the youngest brother

of Narayan.

6. According to P.W.1, upon inquiry, Shrinivasan had informed

him that when Narayan was standing at the well at about 7.35 pm,

Accused no.4 Yangayya assaulted him with her footwear and four

persons were abusing Narayan. Shrinivasan had also intervened to

pacify both the sides. In the meanwhile, Ramanayya had caught hold

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of Narayan and Vyankat assaulted him on his throat and head.

Thereafter, Narayan was admitted in Hospital.

7. That P.W.1 while narrating the prelude to the incident

stated that on 13th September 2011 at about noon there was a quarrel.

Rawan had instigated Vyankat and others to kill Narayan. The FIR is

lodged on the basis of the information given by Shrinivasan to P.W.1.

8. That evidence of P.W.2 - Batulla is consistent with the facts

narrated by P.W.1 in the FIR as far as the prelude to the incident and

the incident of 13th September 2011 at 4.30 pm is concerned. The

incident as deposed by P.W.2 is as follows :

On the same day i.e. on 13th September 2011 at about 7.30

pm., Batulla Sasaiya - P.W.2 along with his friends including Narayan

were chitchatting near the well. Yangayya (Accused No.4) abused

Narayan and assaulted him with a footwear on his chest. The friends

had intervened to pacify both the parties. At that juncture, Ramanayya

caught hold of Narayan and Vyankat assaulted Narayan firstly, on his

throat with a sickle, the second blow was given on the head. Narayan

fell down on the road. Upon witnessing the incident, P.W.2 was

frightened and rushed home whereas, Shrinivasan had taken Narayan

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to Hospital and the accused had fled from the spot. It is stated in the

cross-examination that Shrinivasan was not in their company at that

time. Witness has stood the test of scrutiny. His statement was

recorded after registration of FIR. It is admitted in the cross-

examination that Narayan had abused Yangayya.

9. The evidence of Maladri Borigarala - P.W.3 is consistent

with the evidence of P.W.2. He has stated in his cross-examination that

on that day, since he had fever he had been to the clinic while

returning home he had seen the incident. He is also resident of Lane

No.5. The witness has clarified that accused Vyankat and Ramanayya

had arrived on the spot at the time when Yangayya was quarreling

with Narayan and thereafter, Vyankat had mounted assault on Narayan

with a sickle. He has further stated that on 14th September 2011 he

had voluntarily visited Police Station at about 10.00 am. At that time,

he had learnt that Crime No.133 of 2011 was registered on the earlier

day. He has also reaffirmed his said contentions in cross-examination.

10. Dr. Amol Balwant Shinde - P.W.8 had conducted autopsy on

the dead body of Narayan and has proved the post-mortem notes

which are at Exh.35. Post-mortem notes would show that the deceased

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had sustained as many as five incised wounds and two abrasions. The

injuries are as under :-

"1. Incised wound over left temporal region, 5 x 1cm x bone deep. Bone fractures, horizontal, margins clean cut, reddish.

2. Incised laceration over neck anteriorly, 5 x 3 cm, tissue deep, distance from suprasternal notch 7 cm margins, interiorly clean cut on right side irregular and contused, reddish.

3. Abrasion over chin interiorly 2.5 x 2 cm irregular margins, reddish.

4. Abrasion on chest left side, 4 x 0.5 cm horizontal above nipple, reddish.

5. Incised abrasion on right shoulder anteriorly, 3.5 x 0.5 cm, reddish.

6. Incised abrasion over right arm upper 1/3rd laterally 6 x 0.5 cm horizontal.

7. Incised would over right thumb medially, reddish."

11. Column No.17 of the post-mortem notes would corroborate

narration of the incident as is stated by P.W.2 and P.W.3 who are actual

witnesses to the incident of assault.

12. Devidas Patil - P.W.9 happens to be the Investigating

Officer. He has deposed before the Court in respect of the steps taken

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by him in the course of investigation of Crime No.133 of 2011 at

Mundhawa Police Station. The Investigating Officer has deposed before

the Court that he had learnt about the involvement of the accused

from Navin, the younger son of P.W.1 and the brother of the deceased.

The scene of offence was shown to the Investigating Officer by Navin.

The Investigating Officer had video-graphed the recovery of weapon at

the instance of Accused No.1 on 17th September 2011. The same was

produced before the Court. The said recovery of weapon is disbelieved

by the learned Sessions Court.

13. The learned counsel for the appellants has vehemently

submitted that there is delay in lodging FIR. In fact, even according to

the prosecution, P.W.9 had reached the spot immediately. The incident

has taken place at 7.30 pm but the FIR (Exh.37) is registered at 10.15

pm. The delay in registration of offence is not an inordinate delay. The

first informant happens to be the father of the deceased. He had

initially been to the Hospital and thereafter, has approached the Police

Station. The state of mind of the father of the deceased has to be taken

into consideration and therefore, the said submission cannot be taken

into consideration.

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14. It is further argued that the prosecution has not examined

either Shrinivasan or Navin who happen to be the eyewitnesses to the

incident and therefore, according to the learned counsel, P.W.2 and

P.W.3 are got up witnesses. P.W.2 has stated in the cross-examination

that Shrinivasan was not in their company when the incident occurred

but had arrived on the spot immediately. In fact, he wanted to

accompany Shrinivasan to the Hospital. However, his parents had

come near the rickshaw and had taken him home. He has further

stated that on 15th September 2011 at about 10.00 am he had learnt

from his mother that the father of Narayan had lodged a report at the

Police Station. Thereafter, he threw away his blood stained clothes and

had visited the Police Station at about 10.30 am and informed the

Police about the prelude to the incident and the actual incident. P.W.2

is an young boy who was studying in 11 th Standard at the time when

the incident had occurred. It was quite natural for him to get

frightened after seeing such a ghastly incident. His assertion that he

had thrown blood stained clothes out of fear would clearly establish

that he had helped Shrinivasan to take the injured to the Hospital.

Evidence of P.W.3 is consistent with the evidence of P.W.2.

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15. The learned counsel for the appellants has submitted that

the appellants are falsely implicated at the hands of the Investigating

Agency. Thrust of the argument is on non-examination of Navin and

Shrinivasan. On 6th February 2015, the Public Prosecutor had filed an

application informing the Court that the prosecution does not desire to

examine Navin and Shrinivasan and others as they are on the same

point. To avoid repetition on the face of record, the prosecution had

chosen not to examine multiple witnesses on the same point. The said

application is at Exh.89. The Station diary entry shows that one

Rahinath Ramaiyya Kaman Boina has admitted Narayan in the

Hospital when he was declared dead. This would establish that

Shrinivasan was not one who had admitted Narayan in the Hospital.

The Station diary entry also shows that Narayan was killed by an

unknown person and that he was found in unconscious condition when

he was admitted in the Hospital. The said station diary entry is at

Exh.85.

16. P.W.2 had categorically stated that they had not intervened

in the quarrel. In fact, P.W.3 has stated that the boys present on the

spot had shifted Narayan to Sasoon Hospital.

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17. The contention of the learned counsel that the appellants

are falsely implicated cannot be taken into consideration.

18. It is a matter of record that the Accused No.4 - Yangayya

was the first person who had raised quarrel with Narayan and

assaulted him with her footwear. She was not armed with any weapon.

Similarly, no overt act is attributed to Ramanayya i.e. Accused No.2

except that he had intervened and was trying to pull Narayan from the

scene of offence. The fact that the eyewitnesses have not exaggerated

the incident and have not attributed any specific role to Accused Nos.2

and 4 would clearly show that this could not be a case of false

implication.

19. The post-mortem notes and the evidence of P.W.8 further

establish that the injuries sustained by the deceased could have been

caused by a sickle and that only Accused no.1 was armed with a sickle.

That, Accused Nos.1 and 2 were not present at the spot when

Yangayya had raised a quarrel with Narayan and had assaulted him

with her footwear. This, by itself, would establish that there was no

premeditation and that Accused Nos.2 and 4 had not shared common

intention with Accused No.1. In all probabilities, Accused No.2 had no

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knowledge that Accused No.1 Vyankat would assault Narayan with a

sickle.

20. The learned counsel for the appellants has further

submitted that since there was a sudden quarrel and no premeditation,

the conviction of Accused No.1 be modified to section 304(I) of IPC.

The said submission cannot be taken into consideration for the simple

reason that the deceased had sustained about five incised wounds.

There was no quarrel, much less any altercation between Narayan and

Accused No.1. The first blow was on the throat. The second blow was

on left temporal region which was bone deep. There was incised

wound on right shoulder and right arm. Column No.20 of the post-

mortem notes would show that there was fracture of secondary

corresponding to injury no.1. The dura was cut and there was evidence

of subarachnoid hemorrhage.

21. The learned APP has vehemently supported the judgment

of the Sessions Court and has submitted that the sterling testimony of

P.W.2 and P.W.3 would establish that Accused No.1 alone had caused

homicidal death of Narayan. There was no grave and sudden

provocation. He had seen the quarrel between his sister and Narayan

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and he had caused injuries to Narayan which resulted in his death.

22. The nature of injuries would establish the force with which

the blows were given. It is not a case of grave and sudden provocation

and therefore, conviction recorded against Accused No.1 by the trial

Court needs to be upheld. Hence, we pass the following order :-

ORDER

(i) Appeal is partly allowed;

(ii) Criminal Appeal No.1103 of 2015 is dismissed;

(iii) The conviction and sentence against Accused No.1 -

Vyankat @ Vyankatesh Chanchayya Pinnam in Crime

No.133 of 2011 passed by the Additional Sessions Judge,

Pune in Sessions Case No.790 of 2011 vide judgment and

order dated 3rd June 2015 is hereby upheld and

confirmed;

(iv) Criminal Appeal No.680 of 2015 stands allowed;

(v) The conviction and sentence against Accused Nos.2 -

Ramanayya Chanchayya Pinnam and Accused No.4 - Smt.

Yangayya @ Yangamma Gurayya Battal in Crime No.133

of 2011 passed by the Additional Sessions Judge, Pune in

Sessions Case No.790 of 2011 vide judgment and order pmw 13 of 14

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dated 3rd June 2015 is quashed and set aside;

(vi) Accused Nos.2 and 4 (Appellants in Criminal Appeal

No.680 of 2015) are acquitted of all the charges levelled

against them;

(vii) The Accused Nos.2 and 4 (Appellants in Criminal Appeal

No.680 of 2015) are on bail. Their bail bonds stand

cancelled;

(viii) Fine amount, if any paid, be refunded;

      (ix)      Appeals are disposed of on above terms.



      (N.R. BORKAR, J)                (SMT. SADHANA S. JADHAV, J)




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