Rohit Vijay Borade vs The State Of Maharashtra
2023 Latest Caselaw 94 Bom

                                                       1 / 18           202-APEAL-336-20-&-IA-1060-20.odt

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION

                                              CRIMINAL APPEAL NO.336 OF 2020

                                                                WITH

                                           INTERIM APPLICATION NO.1060 OF 2020
                                                           IN
                                             CRIMINAL APPEAL NO.336 OF 2020

                          Rohit Vijay Borade
                          Age - 21 years,
                          Add - t/o Pathardi Gaon, Rajwada,
                          Tal Dist - Nashik
                          (At present Nashik Road Jail)                          .... Appellant

                                          versus

                          State of Maharashtra
                          Through Police Inspector
                          Indiranagar Police Station,
                          Tal - Dist - Nashik
                          (C.R.No.189/2017)                                      .... Respondent
                                                                .......

                          •       Mr. Pratik R. Kalantri a/w Mr. Vivek Arote, Advocate for Appellant.
                          •       Mr. S. R. Agarkar, APP for the State/Respondent.

                                                      CORAM        : SARANG V. KOTWAL, J.
                                                      DATE         : 04th JANUARY, 2023

                          JUDGMENT :

MANUSHREE V NESARIKAR

1. The Appellant has challenged the Judgment and Order Digitally signed by

dated 26/02/2020 passed by the Additional Sessions Judge-4, MANUSHREE V NESARIKAR Date: 2023.01.07 11:20:03 +0530

Nesarikar 2 / 18 202-APEAL-336-20-&-IA-1060-20.odt

Nashik, in Sessions Case No.363 of 2017. The Appellant was the

original accused No.2. There were two more accused namely

accused No.1 Pravin @ Pavan Sunil Donde and accused No.3

Vishal Raju Donde. At the conclusion of the trial, all the accused

including the Appellant were convicted for commission of

offence punishable u/s 307 r/w 34 of the IPC and were

sentenced to suffer rigorous imprisonment for five years each

and to pay fine of Rs.5,000/- each and in default of payment of

fine to suffer simple imprisonment for two months. They were

acquitted from the charges of commission of offence punishable

u/s 135 of Maharashtra Police Act. They were granted set off u/s

428 of Cr.P.C.

2. Heard Mr. Pratik R. Kalantri, learned counsel for the

Appellant and Mr. S. R. Agarkar, learned APP for the State.

3. The prosecution case is that in one marriage ceremony

there was quarrel between the accused Pravin @ Pavan Donde

and the injured in this case Prakash Donde. On 15/07/2017, at

about 10.15 p.m., outside the Gaming zone in Pathardi this 3 / 18 202-APEAL-336-20-&-IA-1060-20.odt

incident took place. There was quarrel between the injured

Prakash and the accused with reference to previous quarrel

during marriage ceremony. It is alleged that the Appellant tried

to assault the injured Prakash with a Koyta but Prakash removed

that Koyta and threw it away. It is further alleged that accused

No.3 Vishal Donde held the injured Prakash from behind and

accused No.1 Pravin @ Pavan gave blows with the Koyta on the

centre of his head causing grievous injuries. Prakash was taken

to a hospital. The police were informed. They recorded his

statement and registered C.R.No.189/2017 at Indira Nagar

police station on 16/07/2017 at about 03.20 a.m. The accused

including the Appellant were arrested on 18/07/2017. Their

clothes were seized. In the meantime Spot Panchanama was

conducted and Koyta found on the spot was seized. Weapons

and clothes were sent for chemical analysis. Statement of

witnesses were recorded. The statement of eyewitnesses were

also recorded u/s 164 of Cr.P.C. At the instance of accused No.1

one Koyta was recovered. After conclusion of the investigation

charge-sheet was filed and the case was committed to the Court 4 / 18 202-APEAL-336-20-&-IA-1060-20.odt

of Sessions. The defence of the accused was of total denial. After

considering the evidence and after hearing the parties, learned

Judge convicted and sentenced the Appellant and other accused

as mentioned earlier.

4. During trial the prosecution examined nine witnesses

including the victim Prakash Donde, two eyewitnesses, the

Panchas for various Panchanamas, Medical Officers who had

treated the victim and finally the Investigating Officer.

5. P.W.1 Prakash Donde is the main witness. He had

suffered injuries. He has deposed as follows:

He was a resident of Pathardi. He knew the accused

before the Court as they were residents of his village. The

incident had taken place on 15/07/2017 at about 10.15 p.m.

near a temple in village Pathardi. At that time he was walking

with his friend Rohit Soundarya (P.W.2), Pritam Shardul (P.W.3)

and Dilip Pradhan. The Appellant and accused No.1 Pravin @

Pavan came there. On account of their dispute in the Haldi 5 / 18 202-APEAL-336-20-&-IA-1060-20.odt

programme, the Appellant took out a Koyta. P.W.1 snatched it

and threw it away. Accused No.3 Vishal Donde was already

present near the gaming zone. The other accused came

subsequently. After that accused No.3 Vishal caught P.W.1 and

accused No.1 Pravin @ Pavan assaulted him with Koyta on his

head. He also assaulted P.W.1 on right side of the chin, left side

of the head and on his chest. After that P.W.1 became

unconscious. He was taken to Civil Hospital, Nashik. His

statement was recorded by police in the hospital. It was treated

as FIR. It is produced on record at Ex.46. On 16/07/2017, he

was shifted to Life Care Hospital and then to Sopan Hospital.

The police again recorded his statement at Sopan hospital. He

identified the two Koytas produced before the Court as Articles

'A' and 'B'.

In the cross-examination, he admitted that he was

externed from Nashik district at the time of his deposition. There

were three cases pending against him and therefore he was

externed. He further admitted that in the Haldi programme he 6 / 18 202-APEAL-336-20-&-IA-1060-20.odt

had quarrelled with Pavan (i.e. accused No.1 Pravin @ Pavan).

He further admitted that, on that day, the Appellant had not

assaulted him. According to him there were street lights. He

denied the suggestion that he was assaulted from backside and

therefore he could not see the assailants. He further admitted

that, on the date of incident also, there was no quarrel between

him and the present Appellant. He further admitted that there

were two cases pending against him u/s 302 and 376 of the IPC.

Those cases were over. In the sketch map of the spot produced at

Ex.54, there was no mention of street light or other source of

light. His FIR is produced on record at Ex.46. It specifically

corroborates what he had deposed before the Court.

6. P.W.2 Rohit Soundarya was an eyewitness. His version

is different on material aspects from that of P.W.1. He has

deposed that, at the time of incident, he was present with P.W.1

and other friends. They had reached near a Gaming Zone. At

that time, all the three accused came there. Accused No.1 Pravin

@ Pavan started quarreling with P.W.1 Prakash on account of the 7 / 18 202-APEAL-336-20-&-IA-1060-20.odt

earlier dispute. He has deposed that the Appellant took out a

Koyta to assault P.W.1 Prakash. At that time Prakash snatched the

Koyta and threw it away. Accused No.3 Vishal caught Prakash

and then accused No.1 Pravin @ Pavan assaulted P.W.1 Prakash

on his head by means of Koyta. Prakash fell down. Thereafter,

the Appellant took the Koyta from accused No.1 Pravin @ Pavan

and assaulted P.W.1 Prakash on his head and face. This particular

deposition is materially different from the deposition of P.W.1.

P.W.1 has not attributed any such assault to the present

Appellant. After the assault, the accused ran away and Prakash

was taken to hospital. This witness's statement was also

recorded u/s 164 of Cr.P.C.

7. In the cross-examination, certain portions from his

statement recorded u/s 164 of Cr.P.C. were brought to his notice.

They were contrary to his deposition. He accepted those

contrary statements. One important statement which he had

made before the Magistrate u/s 164 of Cr.P.C. was that, when

they were standing by the side of the Gaming Zone, the 8 / 18 202-APEAL-336-20-&-IA-1060-20.odt

Appellant came there and went inside the Gaming Zone. When

he came out, P.W.1 Prakash came to know that the Appellant

Rohit was possessing a Koyta. Prakash then caught the

Appellant. The prosecution case is that after that Prakash threw

away that Koyta. This particular statement shows that the

injured P.W.1 had gone to the Appellant and had removed Koyta.

There was no mention of the Appellant trying to assault P.W.1.

This contrary version is important in the context of this case to

see whether section 34 of the IPC is attracted against the present

Appellant. This is important, because, P.W.1 Prakash himself has

stated that all the blows causing injuries were given by the

accused No.1. P.W.2 further admitted that he did not try to help

Prakash because he had panicked and that he did not know

what had happened inside the gaming zone.

8. P.W.3 Pritam Shardul was another eyewitness. He has

deposed in the same manner as deposed by P.W.1 as far as the

incident is concerned. He has stated that the Appellant picked

up a Koyta. Prakash i.e. P.W.1 had caught that Koyta and threw it 9 / 18 202-APEAL-336-20-&-IA-1060-20.odt

away. After that, accused No.3 Vishal caught hands of P.W.1 and

accused No.1 gave blows with Koyta on P.W.1. This witness has

not attributed any blow with Koyta on P.W.1 to the Appellant.

9. P.W.4 Bhikaji Sawant was a Pancha for various

Panchanamas. He was a Pancha for Spot Panchanama which is

produced at Ex.64. At that time, Koyta lying at the spot was

recovered. He was also Pancha for the Panchanama under which

the clothes of the injured were recovered. He was also Pancha in

whose presence clothes of the accused were seized at the time of

their arrest. He has proved all these Panchanamas.

10. P.W.5 Ashish Ahire was a Pancha in whose presence a

Koyta was recovered at the instance of the accused No.1. This

witness's evidence is not important as far as the present

Appellant is concerned.

11. P.W.6 Dr. Mahesh Khairkar was attached to Civil

Hospital, Nashik. He had examined the victim in the night of

15/07/2017.

10 / 18 202-APEAL-336-20-&-IA-1060-20.odt

P.W.1 had suffered following injuries ;

(i) Incised wound on the left parietal region, having size 9 x 2 cms.

(ii) Incised wound on the occipital region, having size 5 x 2 cms.

(iii) Incised wound on left temporal region, having size 5 x 2 cms.

(iv) Incised wound on the frontal region of skull, having size 12 x 2 cms.

12. The C.T. scan of the brain showed a large subdural

hematoma of width 13 mm along right frontal convexity with

fracture underlined frontal bone. Displaced multiple bony

fragments were also noticed in the brain. There were large bony

fragments found displaced into subdural hematoma ridge of

right orbit and superiorly extends involving vault of skull with

displaced fracture in vault of right side, suggestive of right

cerebral edema.

11 / 18 202-APEAL-336-20-&-IA-1060-20.odt

13. His evidence is corroborated by P.W.8 Dr. Omkar Muley

who was attached to Sopan hospital, Nashik. According to him,

the head injury was in the nature of right frontal hemorrhagic

contusion on right frontal bone, with right frontal sub-dural

hemorrhage. The nature of injuries was grievous and they could

have caused death in ordinary course of nature.

14. P.W.7 PSI Vikas Londhe was attached to Indira Nagar

police station. He had recorded statement of P.W.1 and

registered C.R.No.189/2017. He had prepared Spot Panchanama

and had seized the Koyta.

15. P.W.9 PSI Sunil Bodke had conducted further

investigation. He had arrested the accused. He had seized their

clothes and had sent them for chemical analysis. The C.A. report

mentions that the blood of 'B' group was found on both the

Koytas as well as on the clothes of the accused.

This, in short, was the evidence of the prosecution.

12 / 18 202-APEAL-336-20-&-IA-1060-20.odt

16. Learned Judge considered this evidence and convicted

the Appellant along with other accused as mentioned earlier.

The Appellant was convicted with the aid of section 34 of the

IPC. He had specifically observed that though the accused Nos.2

and 3 did not assault the victim, they would be liable for the

crime as if the same had been committed by them individually.

According to the learned Judge they had shared common

intention with the accused No.1 to commit this offence.

17. Learned counsel for the Appellant submitted that there

was contradiction between the statements of eyewitnesses and

they are not consistent. There was contradictions in their

statements given to the police and before the Court. Therefore

they are not reliable. The injured P.W.1 himself had criminal

history. They were having grudge against each other and

therefore the Appellant was falsely implicated in this case. The

Spot of incident is doubtful as there was no street lamp or street

light mentioned in the Spot Panchanama or in the map. Section 13 / 18 202-APEAL-336-20-&-IA-1060-20.odt

34 of the IPC is not applicable as far as the present Appellant is

concerned.

18. Learned APP opposed these submissions. According to

him, section 34 of the IPC is clearly applicable to the present

Appellant as well. He was carrying Koyta and therefore it

indicated that he shared common intention with the accused

No.1. P.W.1 and P.W.3 have deposed that the Appellant tried to

assault the victim and therefore it cannot be said that he had not

played any part in the assault on the victim. He further

submitted that, P.W.2 had deposed that even the Appellant had

assaulted the victim. The C.A. report is incriminating against the

Appellant. The Koyta attributed to the Appellant was found at

the spot and it also carried blood of 'B' group.

19. I have considered these submissions. As far as injuries

to the victim P.W.1 are concerned, there are undoubtedly serious

injuries attracting section 307 of the IPC. The nature of injuries

and deposition of Medical Officers clearly establish the fact that 14 / 18 202-APEAL-336-20-&-IA-1060-20.odt

the assault on the victim was of serious nature causing very

serious injuries attracting ingredients of section 307 of the IPC.

The crucial question remains as to whether the present

Appellant can be said to be liable for commission of this offence.

20. Though P.W.2 has deposed that the Appellant had also

assaulted the P.W.1 with Koyta, this is directly contrary to the

deposition of P.W.1 and P.W.3. Both these witnesses P.W.1 and

P.W.3 have not stated that the Appellant had given any blow to

the injured P.W.1 causing grievous injuries. To that extent P.W.2's

version is not supported and is in fact contrary to the evidence

of other two eyewitnesses.

21. In this context evidence of P.W.1 is more important.

P.W.1 and P.W.3 have consistently deposed that the blows were

given by accused No.1 alone. All the serious injuries were caused

by accused No.1 alone. Therefore, it is necessary to see whether

there are any circumstances which prove that the Appellant had

shared common intention with accused No.1 as is required u/s 15 / 18 202-APEAL-336-20-&-IA-1060-20.odt

34 of the IPC. From that context it is necessary to carefully

examine the evidence of P.W.1 and P.W.3.

22. P.W.1's evidence shows that the incident started with a

quarrel regarding earlier dispute of the Haldi programme. In the

cross examination he has admitted that the present Appellant

had no concern with the earlier dispute in the Haldi programme

and had no quarrel with P.W.1 even on the date of incident. The

quarrel was directly between the accused No.1 and P.W.1. After

the quarrel started with reference to the previous dispute,

allegedly the Appellant took out Koyta to assault him. P.W.1 has

not even stated that the Appellant had tried to assault him. P.W.1

snatched the Koyta and threw it away. The first part of the

incident stops there.

23. The next part of the incident took place near the

Gaming Zone, where accused No.3 was already present. Accused

No.1 and the Appellant came there after the accused No.3. At

that point, accused No.3 caught P.W.1 and accused No.1 16 / 18 202-APEAL-336-20-&-IA-1060-20.odt

assaulted him with Koyta on his head and face. Thus in the

second part of the incident, P.W.1 himself had not attributed any

role to the Appellant. Same is the evidence of P.W.3. In addition,

the statement made by P.W.2 in his statement recorded u/s 164

of Cr.P.C. which is brought on record as portion mark 'D'

mentions that when the Appellant came out of the Gaming

Zone, P.W.1 came to know that the Appellant was having a

Koyta. At that time, P.W.1 caught the Appellant and then that

Koyta was thrown away. Thus, at no point of time, the Appellant

had tried to assault the victim i.e. P.W.1. That was the first part

of the incident. The main incident took place after that. In that

second part, the Appellant had played no role whatsoever. All

the injuries were caused by accused No.1. P.W.1 has added that

accused No.3 had caught him. The Appellant did not pick up his

own weapon lying at the spot and did not try to assault P.W.1.

The prosecution has not proved beyond reasonable doubt that

the Appellant had shared common intention as defined u/s 34 of

IPC with accused No.1, in causing those serious injuries to the

P.W.1.

17 / 18 202-APEAL-336-20-&-IA-1060-20.odt

24. The other circumstances of finding Koyta at the spot is

not really incriminating because even as per the prosecution

case, the Koyta was taken away from the Appellant by P.W.1 and

it was thrown away at the spot. This does not indicate that the

Appellant had committed offence u/s 307 of the IPC. Same is

the case with the blood stains on the clothes of the Appellant.

His presence at the spot is deposed by all the eyewitnesses. The

crucial point is about his no role in causing injuries to the victim

i.e. P.W.1. Considering all these aspects, the prosecution has not

been able to prove beyond reasonable doubt that the Appellant

had shared common intention with the accused No.1 who had

caused all those serious injuries to the victim P.W.1. In these

circumstances the Appellant's conviction and sentence u/s 307

r/w 34 of IPC cannot be justified.

25. The Appellant is already acquitted from the charges of

commission of offence punishable u/s 135 of Maharashtra Police

Act.

18 / 18 202-APEAL-336-20-&-IA-1060-20.odt

26. Hence, the following order :

ORDER

(i) The Appeal is allowed.

(ii) The Appellant is acquitted from the charges of commission of offence punishable u/s 307 r/w 34 of the Indian Penal Code.

(iii) The Appellant is in custody. He shall be released forthwith, if not required in any other case.

(iv) He shall execute bond u/s 437-A of Cr.P.C. to the satisfaction of the trial Court.

(v) Appeal stands disposed of accordingly.

(vi) With disposal of the Appeal, the companion application does not survive and is disposed of as such.

(SARANG V. KOTWAL, J.)