Sopan Sudam Pagare vs The State Of Maharashtra
2022 Latest Caselaw 2464 Bom

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                                                          10.apeal-697-16.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.697 OF 2016

Sopan Sudam Pagare                                        ... Appellant
           Versus
The State of Maharashtra                                  ... Respondent
                                  ....
Mr. Shailesh Kharat, Advocate (appointed), a/w. Nasreen Ayubi, for
the Appellant.
Ms. Veera Shinde, APP, for the Respondent-State.
                                  ....

                              CORAM : SMT. SADHANA S. JADHAV &
                                      SARANG V. KOTWAL, JJ.

RESERVED ON : 07th MARCH, 2022

PRONOUNCED ON : 11th MARCH, 2022

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 The Appellant has challenged the judgment and order

dated 29.6.2016 passed by the Additional Sessions Judge, Nashik

in Sessions Case No.44/2014. The Appellant was convicted for

commission of offence punishable under Section 302 of the

Indian Penal Code and he was sentenced to suffer life

imprisonment and to pay a fine of Rs.1,000/-; and in default, to

suffer simple imprisonment for one month. The Appellant was

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also convicted for commission of offence punishable under

Section 307 of the Indian Penal Code and was sentenced to suffer

R.I. for seven years and to pay a fine of Rs.1,000/-; and in

default, to suffer simple imprisonment for one month. The

Appellant was granted set off as per Section 428 of Code of

Criminal Procedure, 1973. Both the sentences were directed to

run concurrently.

2 Heard Shri Shailesh Kharat, learned counsel for the

Appellant and Ms. Veera Shinde, learned APP for the State.

3 The prosecution case is reflected in the charge framed

in this case. At about 8.30 p.m. on 15.10.2013 there was some

quarrel between the Appellant on one hand and Vishal

Chaudhari (the deceased in this case) as well as Vijay Ippar (the

injured in this case) on the other. Because of this quarrel, in the

night between 15.10.2013 and 16.10.2013 at about 1.30 a.m.,

the Appellant pulled a wooden bar from the toilet and gave

blows with the same to both Vijay and Vishal on their heads.

This incident took place in barrack No.3, circle No.6 of Nashik

Road Central Prison. Because of this commotion, the other

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prisoners woke up. Both the injured were removed for medical

treatment. Vishal Chaudhari succumbed to his injuries at about

7.15 a.m. on 16.10.2013. The injured Vijay Ippar was admitted

to the hospital. The Appellant was already in the prison as an

under-trial prisoner in another case. He was arrested in this

case. The FIR was lodged by one Shivram Bhil who was

working as a Security Guard in Nashik Road Central Prison. The

investigation was conducted and the case was committed to the

Court of Sessions.

4 The prosecution examined ten witnesses. The defence

of the Appellant was of total denial. After recording the evidence

and the statement of the Appellant under Section 313 of Cr.P.C.,

the arguments were heard by the learned Judge. He passed the

impugned judgment and order convicting and sentencing the

Appellant, as mentioned earlier.

5 The most important witness in this case is PW-5 Vijay

Ippar, who was the injured himself. He has stated that he

himself, the deceased Vishal Chaudhari and the Appellant were

detained in barrack No.3, circle No.6 of Nashik Jail. On

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15.10.2013, there was a quarrel between the Appellant and this

witness because the Appellant had torn a page from his

notebook. The quarrel started on a petty issue, but, it escalated

further. Abuses were given by the Appellant. Vishal Chaudhari

also questioned the Appellant. Thus, there was quarrel between

the Appellant on one hand and this witness and Vishal on the

other. That quarrel took place at about 8.30 p.m. in the evening.

During the night, PW-5 was sleeping. He heard some noise. He

woke up. He saw that the Appellant was assaulting Vishal by a

wooden road. PW-5 also shouted. The Appellant assaulted PW-5

also on his head with the wooden rod. PW-5 became

unconscious. When he regained consciousness, he saw that he

was admitted to J.J. Hospital. His statement was recorded on

12.12.2013. He identified the wooden rod - article No.7, which

was the murder weapon. He also identified other articles, viz.,

clothes, blanket etc.. Because of this assault, the deceased

succumbed to his injuries.

In the cross-examination, he admitted that he was

convicted for commission of offence punishable under Section

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302 of IPC. When the incident took place, the Appellant was an

under-trial prisoner. Vishal Chaudhari was also an under-trial

prisoner. There were about 50 to 60 other persons in that

barrack. According to him, there used to be watchman on duty

during night time. He was cross-examined about possession of a

notebook and whether it was with him in violation of any rule.

In respect of the incident, he has stated that when he woke up,

the Appellant had already assaulted Vishal by that wooden rod

and when PW-5 shouted the Appellant also assaulted him by the

same rod which was in his hand. He denied the suggestion that

he suffered the injuries because of a fall.

6 PW-3 Shivram Bhil was one of the Security Guards in

Nashik Road Central Prison. When he was taking his round at

the time of incident, he heard noise from barrack No.3 of circle

No.6. He heard the noise at about 1.10 a.m.. He rushed there.

He saw that 10 to 12 people had gathered there. The Appellant

was present with a wooden plank in his hand. One Pawar

removed that plank from the Appellant. PW-3 then took it from

Pawar and kept it outside the barrack. He made enquiries and

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came to know about the incident. He informed his superiors.

The injured were taken to hospital. The Appellant was taken

into custody and was kept in a separate cell. PW-3 was asked to

lodge the FIR. Accordingly, he lodged his FIR, which is produced

on record at Exhibit-15.

In the cross-examination, he stated that, when he

reached the spot of incident i.e. barrack No.3; he found that half

of the prisoners were asleep and the others were awake. He

identified the wooden plank i.e. article No.7.

7 The other important witnesses are PW-2 Govind Pawar

and PW-4 Uttam Dhage. Both of them were present in that

barrack. They were both convicts. PW-2 Govind Pawar has

stated that at the time of incident there were 52 under-trial

prisoners and 3 convicted prisoners in barrack No.3. The

convicted prisoners were given duty to serve as Watchmen for

that particular barrack. He was knowing the Appellant, the

injured and the deceased. He has described the incident about

tearing of page of the notebook of the injured Vijay Ippar. PW-2

had intervened in the quarrel. He had seen the Appellant going

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to the toilet at about 1.00 a.m. to 1.30 a.m. in that barrack. After

ten minutes, he saw the Appellant standing near Vijay and Vishal,

who had suffered injuries. The Appellant was standing there with

a wooden rod in his hand. PW-2, then shouted for help. Then

the others came there. He has identified Article No.7 - the

wooden rod. Though, he has narrated about the incident to this

extent, he was declared hostile because in the police statement

given by him, he had stated that he had actually seen the

Appellant giving the blows to Vijay and Vishal. This particular

statement was shown to the witness. He denied having stated so

before the police. The cross-examination on behalf of the

Appellant of this witness was not of any serious significance.

8 PW-4 Uttam Dhage was another Watchman. He was

also a convict and was given duty of Watchman in that barrack.

He has deposed about the quarrel which had taken place at

around 8.00 p.m.. In the night he heard a loud noise at about

1.00 a.m. He saw that Vishal and Vijay had sustained bleeding

injuries and the Appellant was standing near them with a

wooden plank with nails on it. He removed the wooden rod

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from the Appellant and it was handed over to the Security

Guard. The injured were taken to hospital. This witness has also

identified the Article No.7 i.e. the wooden rod.

In the cross-examination, he denied the suggestion

that because of pressure of the jail authorities he was deposing

falsely. However, he admitted that the police had not recorded

his statement and whatever he was deposing was for the first

time.

9 The medical evidence in this case consists of

depositions of PW-6 Dr. Nilkantha Sasane, PW-7 Dr. Jayashree

Chirmade and PW-9 Dr. Kapileshwar Chaudhari. PW-6 Dr.

Neelkanth produced the case papers at Exhibit-43 in this case.

PW-7 Dr.Chirmade was attached to the Civil Hospital as a

Medical Officer. She examined the injured Vijay Ippar and found

that there was one CLW over right frontal region of the size 2 cm

x 3 cm x 3 cm and swelling and blackening of both eyes. There

was evidence of skull fracture, extra dural Haematoma and

subarachnoid hemorrhage. In short, the injuries were quite

serious. Vijay was then referred to J.J. Hospital for further

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examination. She also examined Vishal Chaudhari. PW-7 had

mentioned the cause of death as 'head injury'. The medical

papers show that Vishal had CLW over occipital region and he

was semi-conscious. At about 7.15 a.m. he died.

The dead body was sent to Dhule for postmortem

examination. PW-9 Dr. Kapileshwar Chaudhari conducted the

postmortem examination. There were two injuries on the head

and contusion over right eye. There was skull fracture and the

cause of death was mentioned as 'head injury'.

10 PW-1 Purnanand Purane was a pancha for spot-

panchnama, seizure of clothes of the accused and seizure of

deceased's blanket.

11 PW-8 Khagendra Tembhekar was attached to Nashik

City police station at the relevant time as A.P.I.. He had recorded

the FIR and then assigned the investigation to Rokade for

investigating this case. A.P.I. Rokade, who is examined as PW-10,

investigated the case. He conducted various panchnamas, seized

various articles and recorded the statements. The articles were

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sent for chemical analysis. In the cross-examination, he has

admitted that he has not prepared the panchnama of spot from

where the wooden plank was removed.

12 The C.A. report showed that the blood found on most

of the Articles, including the wooden rod was human blood, but,

it was inconclusive. The blood groups of the Appellant as well as

the deceased could not be determined.

13 Shri Kharat, learned counsel for the Appellant made

following submissions :

i. There were about 52 prisoners in the barrack and none of

them is examined, except the injured PW-5 Vijay Ippar. The

Appellant bringing that rod from a toilet block is not

conclusively proved by the prosecution as PW-2 Govind

Pawar has not supported the prosecution case on that

aspect. He has not even identified the rod. Bringing rod

from the toilet is an omission from the police statements of

the witnesses.

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ii. PW-5 Vijay Ippar is not a reliable witness. Though the

prosecution case is that more than one blow was given,

PW-5's cross-examination shows that when he woke up the

deceased was already assaulted by the Appellant. The

injuries are also possible by fall.

iii. The evidence of the Watchmen, who were themselves the

convicts, is not trustworthy and they were all deposing as

they were under pressure from the jail authorities.

iv. PW-2 Govind Pawar, PW-4 Uttam Dhage and PW-5 Vijay

Ippar themselves were convicted in different offences. PW-2

Govind Pawar and PW-4 Uttam Dhage were already

serving their sentences post conviction.

v. The prosecution has not established the blood group on the

rod as being that of the deceased or the injured PW-5 Vijay

Ippar. Therefore, that is not an incriminating piece of

circumstance.

vi. No panchnama was carried out and no investigation was

made to find out from where that wooden rod was brought

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by the Appellant. The evidence in that behalf is weak.

14 On the other hand, learned APP submitted that the

injured eye witness PW-5 Vijay Ippar has sufficiently proved the

case against the Appellant. His evidence cannot be lightly

brushed aside. The other witnesses PW-2 Govind Pawar and PW-

4 Uttam Dhage are also natural witnesses. Since these three

witnesses, i.e. PW-5, PW-2 & PW-4, have sufficiently proved the

case, there was no necessity to examine any other person from

that barrack.

15 We have considered these submissions. As discussed

earlier, the prosecution case rests heavily on the deposition of

PW-5 Vijay Ippar who himself was injured in the incident. His

deposition about the prior incident which had taken place at

about 8.30 p.m. on the previous evening is sufficiently

corroborated by PW-2 Govind Pawar and PW-4 Uttam Dhage,

who had intervened in the quarrel. Their evidence to that extent

is not shaken by their cross-examination. All of them are the

natural witnesses. PW-5 Vijay Ippar was joined by the deceased

in confronting the Appellant.

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16 After the first incident of quarrel, this incident had

taken place in the night at about 1.30 a.m. when the prisoners

including Vijay and Vishal were sleeping. At this point of time

the Appellant brought that heavy wooden rod from the toilet and

gave blows on the deceased Vishal as well as on the injured Vijay.

The blows were given when both of them were sleeping. After

the blow was given to Vishal, Vijay woke up and then the

Appellant gave a blow on his head as well. Therefore, though

PW-5 Vijay Ippar had not seen the actual blow given by the

Appellant on the deceased's head, he is certain about the blow

given on his own head by the Appellant. His evidence, therefore,

is sufficiently trustworthy. He himself has suffered very serious

injuries, including skull fracture for which he had to be treated in

J.J. Hospital. His injuries were grievous and life threatening.

17 The Appellant was the only person who was standing

with weapon and who could have committed these acts of

causing assault on the injured as well as on the deceased. This

part of PW-5 Vijay Ippar's evidence is sufficiently corroborated

by PW-2 Govind Pawar and PW-4 Uttam Dhage. Though, there is

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some doubt about PW-2 Govind Pawar's deposition as to whether

he had actually seen the assault, leaving aside his evidence to

that extent, his presence at the spot and his version that he saw

the Appellant near both the injured with a weapon in his hand is

sufficiently proved.

18 There is no such infirmity in PW-4 Uttam Dhage's

version and he sufficiently corroborates PW-5 Vijay Ippar's

deposition. Both, PW-2 Govind Pawar and PW-4 Uttam Dhage,

had rushed to the spot on hearing the commotion. Both of them

had seen the Appellant standing near the injured with wooden

rod in his hand. There is no reason to discard their evidence.

19 Thus, the evidence of PW-2 Govind Pawar, PW-4 Uttam

Dhage and PW-5 Vijay Ippar together sufficiently prove the

prosecution case beyond reasonable doubt against the Appellant.

20 The medical evidence shows that the deceased had

died because of the head injury, which was quite possible by the

wooden rod used by the Appellant. Even the injured PW-5 Vijay

Ippar had suffered very serious injury on his head.

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21 Though, the investigating agency has not carried out

any investigation regarding the part of toilet from where the

wooden rod was removed, the very fact that the Appellant was

found with that wooden rod near both the injured shows that he

had actually used it. This is an incriminating piece of

circumstance. Therefore, not carrying out panchnama of the

toilet block, will not make much difference to the prosecution

case. The evidence shows that the Appellant has committed this

offence with pre-meditation, preparation, intention and

knowledge.

22 From the above discussion, it is clear that the

prosecution has proved its case beyond all reasonable doubt. The

impugned judgment and order passed by the trial Judge,

therefore, need not be interfered with. The Appeal is dismissed.

                                (SARANG V. KOTWAL, J.)                    (SMT. SADHANA S. JADHAV, J.)
PRADIPKUMAR
PRAKASHRAO
DESHMANE                    Deshmane (PS)

Digitally signed by
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Date: 2022.03.11 12:00:51
+0530




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