Suraj Chandrakant Aatke vs The State Of Maharashtra
2022 Latest Caselaw 6544 Bom

 CAJ                                  1          Appeal-688-2017 & Ors-Judgment.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 1306 OF 2018

Suraj Chandrakant Aatke                            ]
Age - 20 years, Occ: - Nil,                        ]
R/o. Indiranagar, Lonand,                          ]
Taluka Khandala, District Satara.                  ]
                                                   ]
At present lodged at Kolhapur Central Jail,        ]
District Kolhapur.                                 ]         .....Appellant

        Vs.

The State of Maharashtra                           ]
Through Lonand Police Station,                     ]
Taluka Khandala, District Satara.                  ]       .....Respondent


                                       WITH
                          CRIMINAL APPEAL NO. 190 OF 2018

Akshay Kalidas Gaikwad                             ]
Age - 28 years, Occ: - Education,                  ]
R/o. Indiranagar, Lonand,                          ]
Taluka Khandala, District Satara.                  ]
                                                   ]
At present lodged at Kolhapur Central Jail,        ]
District Kolhapur.                                 ]         .....Appellant

        Vs.

1)      The State of Maharashtra                   ]
        Through Lonand Police Station,             ]
        Taluka Khandala, District Satara.          ]
                                                   ]
2)      Nilesh Kisan Gavekar                       ]
        R/o. Koregaon, Taluka Paithan,             ]
        District Satara.                           ]       .....Respondents



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  CAJ                                    2          Appeal-688-2017 & Ors-Judgment.odt


                                        WITH
                          CRIMINAL APPEAL NO. 688 OF 2017
Satish Bhau Kale                                     ]
Age - 31 years, Occ: - Driver,                       ]
R/o. Indiranagar, Lonand,                            ]
Taluka Khandala, District Satara.                    ]
                                                     ]
At present lodged at Satara Central Jail,            ]
District Satara.                                     ]          .....Appellant

        Vs.

1)      The State of Maharashtra                     ]
        Through Lonand Police Station,               ]
        Taluka Khandala, District Satara.            ]
                                                     ]
2)      Nilesh Kisan Gavekar                         ]
        R/o. Koregaon, Taluka Paithan,               ]
        District Satara.                             ]        .....Respondents

Mr. Veerdhawal Deshmukh, Appointed Advocate for Appellants.
Mr. R. M. Pethe, APP for Respondent-State.

                                      CORAM :   A. S. GADKARI, J.

                                  RESERVED ON        : 22nd JUNE 2022.
                                  PRONOUNCED ON      : 12th JULY 2022.
JUDGMENT:-

Appellants have impugned Judgment and Order dated 29 th

April 2017 passed by learned Additional Sessions Judge, Satara in Sessions

Case No. 112 of 2014, thereby convicting them for the offence punishable

under Section 307 read with Section 34 of the Indian Penal Code (for short

"IPC") and sentencing them to suffer rigorous imprisonment for a period of

seven years and to pay fine of Rs.30,000/- each, in default of payment of

fine to further undergo rigorous imprisonment for 3 months.

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Appellants i.e. Suraj Aatke, Akshay Gaikwad and Satish Kale

are original Accused No.1 to 3 respectively in the present case.

2. Heard Mr. Deshmukh, learned Advocate, who is on the panel of

dedicated pool of 'amicus curie' maintained by this Court to represent and

espouse the cause of Appellants and Mr. Pethe, learned APP for the

Respondent No.1-State. Perused entire record.

3. It is the prosecution case that, on 13th February 2014 the

informant, namely, Mangesh Mane (P.W.16) had been to see a movie in the

afternoon with injured victim namely, Nilesh Govekar (P.W.5). After

watching the movie they went to their respective homes. Both of them

again met in the evening alongwith one Akshay Nevase (P.W.8) and all the

three went to have dinner at a stall namely " Uttam Chinese Corner ".

When they were seated at the said place, Suraj Aatke (A.No.1) and Akshay

Gaikwad (A.No.2) came and sat in front of the informant (P.W.16) and his

associates. The informant (P.W.16) asked Akshay Gaikwad (A.No.2) to give

his mobile phone, but Akshay Gaikwad refused to accede to the said

request. At about 8.45 p.m., Satish Kale (A.No.3) kicked the chair of the

informant. Akshay Gaikwad (A.No.2) held hands of the victim Nilesh

Govekar (P.W.5) and Suraj Aatke (A.No.1) assaulted Nilesh Govekar on his

head, both the hands and stomach with a sickle/scythe. Satish Kale

(A.No.3) took out a knife and started assaulting Nilesh Govekar (P.W.5).

Nilesh Govekar was in full of blood and some how managed to escape from

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the hands of the accused, however, after crossing a short distance fell down.

It is further alleged that, at that spot also accused persons

assaulted Nilesh Govekar (P.W.5) with knife and sickle/scythe. Akshay

Gaikwad (A.No.2) shouted at the people who tried to intervene and told

them not to intervene in the said fight and threatened them with dire

consequences. After assaulting Nilesh Govekar (P.W.5), accused persons fled

from the spot of incident. Persons who gathered at the spot of incident took

injured victim Nilesh Govekar (P.W.5) to the Government Hospital from

where he was taken to Dr. Sawant's Hospital, where primary aid was

administered to the victim. Lateron victim Nilesh Govekar (P.W.5) was

shifted to Dr. Inamdar's Hospital at Pune for further treatment. Late in the

night of 13th February 2014 Crime No. 24 of 2014, under Sections 307, 506

read with Section 34 of the Indian Penal Code (for short "IPC") came to be

registered at Lonand Police Station, District Satara.

4. During the course of investigation, apart from recording

statements of eye witnesses, the Investigating Officer Bharat Kendre

(P.W.18) seized various articles including the weapons used by the accused

in the present crime by effecting necessary recovery panchnamas. As victim

Nilesh Govekar (P.W.5) had suffered grievous injuries and was unconscious

for more than 4 days, his statement under Section 164 of Criminal

procedure Code (for short "CrPC") came to be recorded belatedly. The

victim Nilesh Govekar was in hospital from 13 th February 2014 till

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25th March 2014 i.e. for about 39 days. After completion of investigation,

the Investigating Officer submitted charge-sheet in the Court of Judicial

Magistrate First Class, Khandala, District Satara.

5. As the case was exclusively triable by the Court of Sessions, the

learned Judicial Magistrate First Class, Khandala, District Satara committed

the said case to the Court of Sessions at Satara, as contemplated under

Section 209 of the CrPC.

In support of its case the Prosecution has examined in all 18

witnesses namely Mr. Harish Bhatiya (P.W.1), a panch witness, to the spot of

incident panchanama (Exh-43); Mr. Nikhil Kharat (P.W.2), an eye witness to

the incident; Mr. Umesh Kharat, a panch witness to the recovery of blood

stained cloths of Accused No.1 Suraj Aatke (Exh-38); Mr. Ganesh Bhalerao

(P.W.4), an eye witness; Mr. Nilesh Govekar (P.W.5), injured victim; Mr. Vijay

Khatal (P.W.6), panch witness to the seizure of cloths of victim (Exh-114);

Mr. Rakesh Mane (P.W.7), a witness accompanied victim to hospital at

Lonand; Mr. Akshay Nevase (P.W.8), an eye witness; Mr. Nilesh Kamble

(P.W.9), a panch witness to the recovery to blood stained cloths of A.No.2

Akshay Gaikwad (Exh.120); Mr. Ankush Dhaigude (P.W.10), panch witness

to the seizure of cloths of victim Nilesh Govekar (Exh.114); Mr. Rohidas

Kshirsagar (P.W.11), an eye witness and owner of a Pan Shop situated at the

spot of incident; Mr. Akshay Dhodke (P.W.12), panch witness for recovery of

weapons i.e. knife and sickle and cloths from A.No.3 Satish Kale (Exh-117),

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Mr. Nitin Lakhe (P.W.13), panch witness to the recovery panchanama

(Exh.120) of cloths of Akshay Gaikwad (A.No.2); Dr. Kunal Oswal (P.W.14),

Doctor who performed surgery upon the injured victim Nilesh Govekar; Dr.

Mini Chitkara (P.W.15), prepared Medical Certificate of injured witness Mr.

Nilesh Govekar; Mr. Mangesh Mane (P.W.16), first informant; Mr. Keshav

Khude (P.W.17), Police Officer who registered F.I.R. and Mr. Bharat Kendre

(P.W.18), Investigating Officer of the present crime.

6. The Trial Court framed charge below Exh.14. The contents and

details of it were read over and explained to the Appellants in vernacular

language to which they pleaded not guilty and claimed to be tried. After

recording evidence of the Prosecution witnesses, the Trial Court recorded

statements of Appellants under Section 313 of the CrPC. The defence of

Appellants was that of total denial and false implication. Appellants did not

examine any witness in their defence. Trial Court after hearing the learned

Advocates for the respective parties and perusing entire evidence on record

has convicted and sentenced the Appellants as noted herein above.

7. Mr. Deshmukh, learned Advocate appearing for Appellants

submitted that, the informant Mangesh Mane (P.W.16) has turned hostile.

That, the other eye witness namely Akshay Nevase (P.W.8) who was

accompanying the informant and injured witness has also been declared

hostile by the Prosecution. That, from the eye witness Ganesh Bhalerao

(P.W.4) material omissions have been extracted by Appellants which shakes

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the credibility of the other eye witnesses including the injured. He

submitted that, though Appellants recorded statements of various other eye

witnesses who were present at the said chinese stall and whose names are

mentioned in the proforma charge-sheet, the prosecution has not examined

the said witnesses thereby causing doubt about the prosecution's case in the

mind of the Court. He submitted that, material omissions have been

brought on record from the eye witnesses. That, the driver of the tempo

from which the injured victim Nilesh Govekar (P.W.5) was taken to the

hospital initially at Lonand and the persons who were working in the said

restaurant have not been examined by the prosecution. He submitted that,

Prosecution has examined only interested witnesses and a false case has

been foisted upon the Appellants. That, the injured witness Nilesh Govekar

(P.W.5) is a history sheeter and Appellants were earlier moving around with

him. That, due to difference of opinion, the Appellants left his company

and therefore have been falsely implicated in the present case at the behest

of Nilesh Govekar (P.W.5). He submitted that, as Nilesh Govekar was

having enmity with various other persons in the vicinity, commission of the

present crime i.e. assault on him may be an act of his other enemies,

however, certainly not by the Appellants. He therefore prayed that, the

impugned Judgment and Order may be set aside by acquitting Appellants

from all the charges framed against them.

8. Mr. Pethe, learned APP vehemently opposed these Appeals and

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submitted that, though two witnesses namely Mangesh Mane (P.W.16) and

the informant Akshay Nevase (P.W.8) have not supported the Prosecution

case, the evidence of other four eye witnesses including the injured victim

(P.W.5) is fully reliable and trustworthy. The said witnesses have

categorically named Appellants as assailants of the injured victim Nilesh

Govekar. He submitted that, there is recovery of weapons used in the

present crime at the instance of Satish Kale (A.No.3). That, the blood stains

found on the said weapons are matched with the blood group of injured

victim Nilesh Govekar, who was having blood group "B". He submitted

that, the Prosecution has established its case beyond reasonable doubt and

therefore, there is no need to interfere with the impugned Judgment and

Order convicting and sentencing Appellants.

9. Perusal of entire evidence on record indicates that, out of six

eye witnesses examined by the Prosecution, Akshay Nevase (P.W.8) and

Mangesh Mane (P.W.16) have turned hostile, as they did not support the

Prosecution case and resiled from their original statements. Therefore, the

evidence of injured victim Nilesh Govekar (P.W.5), Nikhil Kharat (P.W.2),

Ganesh Bhalerao (P.W.4) and Rohidas Kshirsagar (P.W.11) is material and

relevant for consideration herein.

Injured victim Nilesh Govekar (P.W.5) in his testimony has

deposed that, on 13th February 2014 between 8.00 p.m. to 8.15 p.m., he

alongwith Mangesh Mane (P.W.16) and Akshay Nevase (P.W.8) had been to

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Uttam Chinese Corner and had food there. They were sitting on chairs. At

that time Mangesh Mane demanded mobile phone from Akshay Gaikwad

(A.No.2) to which Akshay replied that his mobile phone is switched off.

The Appellants were sitting on chairs in front of them. After Mangesh

Mane demanded phone from Akshay Gaikwad (A.No.2), Satish Kale

(A.No.3) got up and gave kick to the chair of Mangesh Mane (P.W.16). At

that time, Akshay Gaikwad (A.No.2) held Nilesh Govekar (P.W.5) and Satish

Kale (A.No.3) gave blows with knife on the stomach of the victim Nilesh

Govekar. Suraj Aatke (A.No.1) assaulted victim Nilesh Govekar (P.W.5)

with a sickle used for breaking coconuts, on the hand of the victim. When

Nilesh Govekar started running from the scene of offence Suraj Aatke

(A.No.1) inflicted a blow of sickle on the neck of the Nilesh Govekar. Nilesh

govekar (P.W.5) fell on the road as he was soaked with blood. At that time,

Akshay Gaikwad (A.No.2) shouted and told the people gathered there that,

if anybody comes forward to rescue the said fight, the concerned person

will have to face same serious consequences. Nilesh Govekar got

unconscious at the said spot and regain consciousness in the hospital.

In his cross examination nothing material has been brought on

record by the defence to either disbelieve or discredit his testimony in

examination in chief. In his cross-examination the suggestions given, have

been denied by him.

10. The other three eye witnesses i.e. Nikhil Kharat (P.W.2), Ganesh

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Bhalerao (P.W.4) and Rohidas Kshirsagar (P.W.11) have duly corroborated

the version of injured Nilesh Govekar (P.W.5) on all counts. Except bringing

on record a few omissions which are minor in nature nothing beneficial to

the Appellants, have been extracted from their elaborate cross-examination.

Thus, the version of injured witness Nilesh Govekar (P.W.5) has been duly

corroborated by the other eye witnesses.

11. The weapons used in the present crime i.e. knife and sickle

have been recovered from Satish Kale (A.No.3) in presence of Akshay

Dhodake (P.W.12). The said witness has duly proved recovery panchanama

(Exh-117). The Chemical Analyzer's report (Exh-132) mentions that, the

blood group of victim Nilesh Govekar (P.W.5) was "B" and blood group

found on the weapons recovered at the instance of Satish Kale (A.No.3) has

been tallied. It is also a strong circumstance against accused Satish Kale

(A.No.3). Though the witness i.e. Akshay Dhodake (P.W.12) has been

declared hostile by the prosecution, the said Exhibits i.e. 117 and 132 have

been duly proved by the prosecution.

12. This leads me to deal with the most important aspect of the

present case. Dr. Kunal Oswal (P.W.14) in his deposition has stated that, on

examination of injured Nilesh Govekar (P.W.5) he found following injuries :-

(i) Stab wound over the abdomen, which was deep,

(ii) Multiple C.L.W. injuries over the right wrist, measuring 10

X 2 c.m.; on left shoulder joint, measuring 2 X 2 c.m.; on left arm,

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measuring 3 X 2 c.m.; on the left arm lateral side, measuring 2 X 3 X 2 c.m.;

on left cubical region, measuring 10 X 3 c.m. and on left forearm,

measuring 3 X 3 c.m.,

(iii) Multiple injuries over the neck,

(iv) On frontal region of head, fronto parietal on right and left

side.

He has further stated that, there were eight injuries over the

hand and contused lacerated wound over the neck. That, the injured Nilesh

Govekar (P.W.5) was admitted in his hospital since 13th February 2014 and

was discharged on 25th March 2014. In his cross-examination a vital

admission has been brought on record. The said witness has admitted that,

such type of injuries are not life threatening.

It is thus clear from the testimony of Dr. Kunal Oswal (P.W.14)

that, the offence alleged against the Appellants would not fall within the

purview of Section 307 of the IPC, however would certainly fall within the

purview of Section 326 of the IPC i.e. voluntarily causing grievous hurt by

dangerous weapon or means.

13. In view of the above, the Appellants are held guilty under

Section 326 of the IPC. The conviction and sentence awarded by the Trial

Court to the Appellants under Section 307 of the IPC is accordingly

modified and the Appellants have been convicted under Section 326 of the

IPC and are sentenced to suffer rigorous imprisonment for seven years.

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The fine amount imposed by the Trial Court upon Appellants is

maintained.

The Judgment and Order passed by the Trial Court is

accordingly modified to the aforesaid extent.

All the Appeals are partly allowed in the aforesaid terms.

14. Before parting with the Judgment, this Court places on record

a word of appreciation for the efforts put in by Mr. Veerdhawal Deshmukh,

learned Advocate who is on the panel of dedicated pool of 'amicus curiae'

maintained by this Court for espousing the cause of Appellants as he was

thoroughly prepared in the matter and rendered proper assistance to the

Court.

15. Record indicates that, Accused No.1 Suraj Aatke and Accused

No.3 Satish Kale i.e. Appellants in Criminal Appeal No.1306 of 2018 and

Criminal Appeal No.688 of 2017 respectively have undergone sentence

awarded to them as they were not released on bail during the pendency of

Appeals.

Accused No.2 Akshay Gaikwad i.e. Appellant in Criminal

Appeal No.190 of 2018 is on bail. Accused No.2 is directed to surrender

before the Trial Court within a period of four weeks from today for

undergoing balance sentence.

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16. With a view to keep the record straight, Registrar (Judicial-I) is

directed to communicate the present Order to the Superintendent of

Kolhapur Central Prison, District Kolhapur and Satara Central Prison,

District Satara, where Accused Nos.1 and 3 were lodged respectively.

[A.S. GADKARI, J.]