Narayan Mhasu Pithe vs The State Of Maharashtra And Anr
2022 Latest Caselaw 4655 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO.916 OF 2019

Narayan Mhasu Pithe                                       ... Appellant
           Versus
The State of Maharashtra &
another                                                   ... Respondents
                                       ....
                                      WITH
                       INTERIM APPLICATION NO.1863 OF 2021
                                       IN
                         CRIMINAL APPEAL NO.916 OF 2019

                                   ....
Mr. S.P. Dighe, Advocate for the Appellant/Applicant.
Mr. V.B. Konde-Deshmukh, APP, for Respondent No.1-State.
Mr. Rupesh A. Zade, Advocate appointed for Respondent No.2.
                                    ....

                              CORAM :   S. S. SHINDE AND
                                        SARANG V. KOTWAL, JJ.

RESERVED ON : 26th APRIL, 2022

PRONOUNCED ON : 2nd MAY, 2022

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

1 The Appellant has challenged the judgment and order

dated 29.1.2019 passed by the Additional Sessions Judge, Niphad,

District-Nashik in Sessions Case No.36/2012. By the impugned

judgment and order, the Appellant was convicted for commission of

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offence punishable under Section 452 of the Indian Penal Code and

was sentenced to suffer R.I. for five years and to pay a fine of

Rs.5,000/-; and in default of payment of fine to suffer S.I. for six

months. The Appellant was convicted for commission of offence

punishable under Section 307 of IPC and was sentenced to suffer

life imprisonment and to pay a fine of Rs.7,000/-; and in default of

payment of fine to suffer R.I. for one year. Both the sentences were

directed to run concurrently. The Appellant was in custody from

23.3.2012 to 26.6.2012 and since 12.9.2018 till 29.1.2019 during

pendency of the trial and for that period he was granted set off

under Section 428 of Cr.P.C.. Out of the fine amount, Rs.10,000/-

were directed to be paid to the first informant Gangubai Wagh

towards the compensation under Section 357 of Cr.P.C..

2 We have heard Shri S.P. Dighe, learned counsel for the

Appellant, Shri V.B. Konde-Deshmukh, learned APP for the State

and Shri Rupesh Zade, learned counsel appointed for Respondent

No.2.

3 The prosecution case is that on 22.3.2012 in the

midnight, the Appellant entered the house of the first informant

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Gangubai Wagh at Ozar, Taluka-Niphad, District-Nashik and

assaulted Gangubai and Baburao with a chopper on their heads

and other parts. They became unconscious. While leaving, he

latched the door from outside. On the next day morning, the

neighbours rescued them and shifted them to the hospital.

Thereafter the FIR was lodged. The Appellant was arrested. The

investigation was carried out. The charge-sheet was filed and the

case was committed to the Court of Sessions.

4 During the trial, the prosecution examined eight

witnesses. PW-1 and PW-2 were the injured witnesses. At the

conclusion of the trial, the Appellant was convicted and sentenced

as mentioned earlier.

5 Learned counsel for the Appellant submitted that the

evidence of eye witnesses is not free from doubt. There is nothing

to show that from where the murder weapon was brought. The

motive was not established. The offence under Section 307 of IPC

is not made out. In any case, extreme punishment of life

imprisonment is extremely harsh; and if it is held that the offence is

proved, the sentence be reduced.

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6 Learned APP as well as learned counsel for Respondent

No.2, on the other hand, submitted that the evidence of eye

witnesses is sufficient to prove guilt of the Appellant and the

sentences awarded are proper. The conduct of the Appellant shows

that he deserves no sympathy.

7 We have considered these submissions and with the

assistance of learned counsel we have perused the evidence.

8 The main evidence, of course, is of the injured eye

witnesses. PW-1 Gangubai Wagh was the first informant. She has

stated that she was residing with her son Baburao at Ozar. On the

day of the incident in the midnight, she herself and her son were

sleeping in the house. Someone knocked the door from outside.

She opened the door. She saw the present Appellant. She knew

him as her distant relative. The Appellant asked for food. Then he

told PW-1 to transfer her house at Koliwada in his name. PW-1

refused. He requested PW-1 to allow him to sleep in the house. He

asked her to switch off the light. However, PW-1 refused. Then the

Appellant assaulted PW-1 and her son Baburao with chopper. Both

of them were assaulted on the head and hands. After that he went

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away. While going, he latched the door from outside. PW-1 and

her son became unconscious. They regained consciousness in the

morning at around 6.00 a.m.. They called their neighbours. The

neighbours came there and rescued them. The police were

informed. PW-1 and her son were shifted to the Government

Hospital at Ozar. The police recorded her statement. It was treated

as FIR. The FIR is produced at Exhibit-31. After that, she was

shifted to Civil Hospital at Nashik.

In the cross-examination, she was asked about the exact

relation of the Appellant with her. He was a distant relative. PW-1

and her brother-in-law Chindhu Charoskar owned a house at Ozar

which they had sold. The Appellant's sister was daughter-in-law of

said Chindhu Charoskar. A suggestion was given that because of the

dispute between Chindhu Charoskar and PW-1; the Appellant was

falsely implicated by PW-1. In the cross-examination, she has

deposed that the neighbours resided at a long distance. She was

hospitalized for about fifteen days.

9 PW-2 Baburao Wagh is the son of PW-1. He has narrated

the incident in exactly the same manner as deposed by his mother

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PW-1. He identified the Appellant in the Court. His cross-

examination was not conducted by the Appellant's counsel and the

Appellant himself only put one suggestion that the Appellant used

to visit their house. This suggestion was accepted by PW-2. There

is practically no challenge to the evidence of this witness PW-2.

10 PW-3 Mahesh Pandav was a pancha for spot panchnama.

The spot panchnama is exhibited at Exhibit-34. During spot

panchnama, blood on the spot was collected for sending it for

chemical examination. The clothes of PW-1 were also produced in

his presence under panchnama at Exhibit-35. He was also a pancha

when the Appellant had made voluntary statement of showing the

place where the chopper was concealed by him. The Appellant led

the pancha and the police party near Amrut Nagar. The chopper

was hidden below the garbage in a ditch. It was seized. The

panchnama is produced on record at Exhibit-37.

11 PW-4 Manoj Pandav was a neighbour. His mother heard

shouts at 6.45 a.m. on that day after the incident. She informed

this witness and then everybody rushed there. The door was

latched from outside. This witness opened the door. There were

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blood stains inside the house. PW-1 and PW-2 were seen in injured

condition in the house. PW-1 narrated the incident to this witness.

Then police were informed. They reached there. The injured were

taken to hospital. This witness was not cross-examined.

12 PW-5 Alka Hermade was the daughter of PW-1. She had

rushed to PW-1's house on hearing the news telephonically through

one Shailesh Jadhav. She handed over clothes of the injured to the

police.

13 PW-6 Shailesh Jadhav was another neighbour. He has

deposed in the same manner as PW-4.

14 PW-7 Dr. Vaibhav Patil had examined both the injured.

Gangubai had suffered the following injuries :

'1. CLW on forehead - 10 cm x 5 cm. It was grievous in nature and must be inflicted by sharp cutting weapon, age of injury was fresh.

2. CLW on right thumb, size 5 cm x 3 cm. It was grievous in nature and must be inflicted by sharp cutting weapon, age of injury was fresh.

3. CLW on left occipital region size 8 cm x 5 cm, must be caused by sharp cutting object, it was

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grievous in nature and it was fresh.

4. CLW on right parital region. It was grievous in nature and must be caused by sharp cutting object and it was fresh."

. PW-2 Baburao had suffered the following injuries :

"1. CLW on right parietal region size 10 cm x 3 cm. It must be caused due to sharp cutting object. It was fresh and grievous in nature.

2. CLW on forehead, size 10 cm x 3 cm. It must be caused due to sharp cutting object. It was fresh and grievous in nature.

3. CLW on right forearm, size 4 cm x 3 cm. It must be caused due to sharp cutting object. It was fresh and grievous in nature."

. The injury certificates were produced on record.

15 PW-8 Mahesh Bhortekar was the investigating officer.

After C.R. No.32/2012 was registered at Ozar police station, this

witness had conducted the investigation. He had recorded the

statements and had conducted the spot panchnama. He had

arrested the Appellant on 23.2.2012. He had recovered the

chopper at the instance of the Appellant.

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16 Learned Judge, based on this evidence; convicted and

sentenced the Appellant as mentioned earlier.

17 The evidence of PW-1 and PW-2 is important in this case.

PW-2 was not cross-examined by the Advocate of the Appellant.

The Advocate was not present. Therefore leaving aside this

evidence, the evidence of PW-1 can be considered seriously against

the Appellant. She has deposed the incident in detail. She has

attributed the exact role to the Appellant, who was known to her as

a distant relative. There was some property dispute, as is suggested

in her cross-examination, which was the reason for this assault.

There is no reason for PW-1 to implicate the Appellant falsely. She

was assaulted on her head. Her son was assaulted on his head and

the medical evidence shows that both of them had suffered

grievous injuries on vital parts. Therefore, this evidence is

sufficient to prove the guilt of the Appellant. The ingredients of

Section 307 of IPC are also proved. There is hardly any scope to

raise doubt about the prosecution evidence in respect of

involvement of the present Appellant. It is further corroborated by

recovery of chopper at the instance of the Appellant.

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18 The neighbours' evidence also corroborates PW-1's

version that in the morning on hearing their shouts they had

gathered at the spot and had removed the latch to find PW-1 and

PW-2 inside the house in injured condition. This gives sufficient

corroboration to their depositions.

19 In this view of the matter, we are satisfied that the

prosecution has proved its case beyond reasonable doubt. However,

we find that there are certain mitigating circumstances in favour of

the Appellant as far as sentencing part is concerned. Both the

injured were at his mercy. He was carrying the deadly weapon.

Both of them had become unconscious. However, the Appellant did

not cause more assault resulting in their death. Though he had

latched the door from outside, he had ample opportunity to cause

more injuries and to cause their death. The incident is dated

22.3.2012. The Appellant was on bail for some period during the

trial. There are no allegations about his misusing the liberty.

Therefore, there is scope to believe that a reformative approach in

Appellant's favour can be adopted in this case. The impugned

judgment itself mentions that the Appellant had aged parents, wife

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and children at the time of passing of the impugned judgment.

Today after about three years from the date of impugned judgment,

the position must not have changed.

20 Under Section 307 of IPC the maximum punishment

provided is for life imprisonment. However, the maximum sentence

is awarded only in cases deserving maximum punishment.

However, we find this to be a case where leniency in sentencing can

be shown to the Appellant by reducing the life imprisonment to a

shorter term and at the same time imposing higher fine so that the

victims can be compensated reasonably to some extent. We are

informed by learned counsel for the Appellant that the Appellant

has already paid the fine amount.

21        Hence the following order :


                           :: O R D E R ::

i.    The Appeal is partly allowed.

ii. The conviction and sentence of the Appellant under Section

452 of IPC are maintained. He is already sentenced to suffer

R.I. for five years and to pay fine of Rs.5,000/- and in default

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of payment of fine to suffer S.I. for six months, for the offence

punishable under Section 452 of IPC. This conviction and

sentence is maintained.

iii. The Appellant was convicted for commission of offence

punishable under Section 307 of IPC and he was sentenced to

suffer life imprisonment and to pay a fine of Rs.7,000/- and

in default of payment of fine to suffer R.I. for one year. The

conviction under Section 307 of IPC is maintained. However,

the sentence of life imprisonment is altered to that of R.I. for

a period of ten years. In addition to the fine amount which

was imposed as Rs.7,000/-, the Appellant is directed to pay

further fine of Rs.1,00,000/- (Rupees One Lakh only); in

default of payment of the fine amount of Rs.1 Lakh, the

Appellant is directed to suffer further R.I. for two years.

iv. Both the sentences are directed to run concurrently.

v. The Appellant was in custody since 23.3.2012 to 26.6.2012

and since 12.9.2018 till 29.1.2019 as an undertrial prisoner.

He shall be given set off for said period under Section 428 of

Cr.P.C..

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vi. If the fine amount of Rs.1 Lakh is deposited, the victims i.e.

PW-1 Gangubai Wagh and PW-2 Baburao Wagh shall be paid

Rs.50,000/- (Rupees Fifty Thousand) each towards the

compensation, in view of section 357 of Cr.P.C..

vii. The Appeal is disposed of in the aforesaid terms. In view of

disposal of main Appeal, nothing survives in Interim

Application No.1863/2021 and same stands disposed of

accordingly.

(SARANG V. KOTWAL, J.) (S.S. SHINDE, J.)

Deshmane (PS)

Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2022.05.02 15:47:41 +0530

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