Bombay High Court
Kishor S/O. Muralidhar Shirsath ... vs The State Of Maharashtra on 3 November, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:23787-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 535 OF 2017
1] Kishor s/o Muralidhar Shirsath
Age 28 yrs., Occ. At present Nil,
R/o N-6, CIDCO, Aurangabad,
Taluka and District Aurangabad.
2] Samadhan s/o Muralidhar Shirsath
Age: 31 years, Occu. And
R/o. As above. ... Appellant
[Orig. Accused
Nos.1 & 2]
Versus
. The State of Maharashtra
Through the Police Station Officer,
Police Station, CIDCO, Aurangabad,
Taluka and District Aurangabad. ... Respondent
.....
Mr.Rajendrraa Deshmukh, Senior Counsel i/b. Mr.Devang R.Deshmukh, Advocate
for Appellants.
Mr.S.J.Salgare, APP for Respondent-State
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 27 OCTOBER, 2023
PRONOUNCED ON : 03 NOVEMBER, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Both appellants are hereby assailing judgment and order of
conviction passed by the learned Additional Sessions Judge, Aurangabad dated
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15-09-2017 in Sessions Case No.153 of 2013 by which both appellants are
held guilty and thereby convicted for offence under Section 302 read with 34
of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life.
BRIEF STORY OF PROSECUTION
2. On 16-01-2013 at around 10:00 p.m. there was heated exchange of
words between PW1 Pawan and appellant Samadhan. Thereafter, at the
instance of appellant Samadhan, 5-6 boys visited house of PW1 Pawan raising
shouts. PW1 Pawan called up appellant Samadhan and questioned him why
he had sent boys to his house. According to prosecution, appellant Samadhan
threw challenge to PW1 Pawan to visit N6 Cidco. PW1 Pawan went to the said
place with his younger brother Kapil at around 11:45 p.m. There appellants
Samadhan, Kishor and two of their other friends initially assaulted PW1 Pawan
with fist and kick blows. Appellant Kishor whisked out knife from his waist
and gave several blows on the chest, stomach, waist of Kapil as a result of
which he collapsed. PW1 Pawan with the help of PW3 Chandrakant shifted
him to the hospital. Early morning Doctor declared him dead. After last
rituals and funeral, PW1 Pawan set law into motion vide Exh.18. Crime being
registered, investigated by PW6 Bawiskar (PI) and both appellants were
challaned and finally tried by the learned Additional Sessions Judge,
Aurangabad, who on appreciation of evidence adduced by prosecution,
reached to a conclusion that prosecution has proved the charges and thereby
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convicted both appellants for charge under Section 302 read with 34 of the
IPC.
Above conviction is subject matter of challenge in this appeal on various
grounds raised in the appeal memo.
SUBMISSIONS
On behalf of appellants :
3. Mr.R.S.Deshmukh, learned Senior Counsel for the appellants took us
through the charge as well as evidence of PW1 Pawan, PW2 Vishal, PW3
Chandrakant and PW6 Pratap (Investigating Officer) i.e. through both
examination-in-chief and cross-examination and he would strenuously submit
that there was no motive behind the occurrence. He would submit that merely
case is put-forth that appellant Samadhan is a 'Gunda element' but there is
no iota of evidence documentary or oral. He pointed out that going by
sequence enumerated by prosecution witnesses, it is the informant party who
themselves had gone to the spot. He would submit that here what actually
happened at the spot is neither stated by PW1 Pawan, PW2 Vishal and PW3
Chandrakant, who are relevant witnesses. He pointed out that very genesis of
occurrence is also not put-forth by prosecution. That the act was not
premeditated one as there was only allegation of assaults by fist and kicks. He
pointed out that there is nothing on record to show that appellant Samadhan
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was aware of appellant Kishor to be armed with knife or he to be using it.
Consequently, it is his submission that even common intention could not be
attributed with such quality of evidence. He further pointed out that here
though there is allegation of assault by appellant Kishor, surprisingly recovery
of knife is shown to be at the instance of appellant Samadhan and so it is his
submission that so called discovery cannot be attributed to appellant
Samadhan, who was neither equipped nor put to use any weapon in the
incident. He submitted that viewing from any angle, case in hand would not
attract offence under Section 302 of the IPC but at the most it would attract
offence of culpable homicide not amounting to murder and more particularly,
offence under Section 304 Part II of the IPC and case would not travel beyond
it. For all above reasons, he seeks indulgence of this Court by allowing the
appeal.
On behalf of State;
4. Countering above submissions, learned APP would submit that it is a
clear case of homicidal death. PW5 Dr.Rathod, Autopsy Doctor has confirmed
death to be homicidal one. Learned APP invited our attention to the post
mortem report Exh.65 in support of his such submission. He further submitted
that here there is direct evidence. PW1 Pawan himself is victim of assault.
PW2 Vishal and PW3 Chandrakant, who had no axe to grind and are
independent witnesses have also named both the appellants for committing
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offence of murder. Weapon is recovered and though it is shown to be
recovered at the instance of accused Samadhan, in the light of availability of
eye witness account, so called recovery also cannot be itself made a ground to
acquit accused persons, who are shown to be responsible for death of deceased
Kapil, who was mercilessly done to death. Favouring the judgment passed by
the learned trial Judge, he submitted that there is full-proof and strong
incriminating evidence regarding involvement of appellants. Therefore, they
are rightly held guilty and convicted. There is no merit in the appeal and so
he prays to dismiss the appeal.
5. In support of its case, prosecution has examined in all six witnesses in
the trial Court. Their status is as under :
EVIDENCE ON BEHALF OF PROSECUTION
PW1 Pawan Bhagvandas Vaishnav is brother of deceased and informant. His
evidence is at Exh.17.
PW2 Vishal Dinkarrao Kanitkar is also an eye witness. He is an independent
witness. His evidence is at Exh.34.
PW3 Chandrakant Nana Gawai is another eye witness. His evidence is at
Exh.52.
PW4 Vinod Pralhadrao Farkade is Pancha to memorandum and seizure of
knife. His evidence is at Exh.58. Seizure panchanama is at Exh.60.
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PW5 Dr.Vikas Madan Rathod is Autopsy Doctor. His evidence is at Exh.64.
Post mortem report is at Exh.65.
PW6 Pratap Wamanrao Bawiskar is Investigating Officer. His evidence is at
Exh.73.
6. We have meticulously gone through the evidence adduced by the
prosecution in the trial Court and have carefully re-appreciated, re-analyzed
and re-examined the evidence of prosecution, more particularly, evidence of
PW1 Pawan, PW2 Vishal and PW3 Chandrakant. There is no serious dispute
that deceased Kapil met homicidal death. On visiting evidence of PW5
Dr.Rathod, Autopsy Doctor and taking into account the multiple stab injuries
found on person of deceased, there is no hesitation to held that it is only and
only homicidal death and nothing short of it.
7. Now it is to be seen as to whether both appellants are guilty for the
homicidal death of deceased Kapil or not.
On carefully going through the evidence of PW1 Pawan, it is emerging
that on 16-01-2013 at around 10:00 p.m. when he was going to visit a Pan
stall, appellant Samadhan seems to have given him a call and when PW1
Pawan ignored, appellant Samadhan got annoyed and started hurling abuses
and therefore PW1 Pawan seems to have gone to him and questioned him
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upon which he had allegedly uttered "Thamb Tula Dakhavato" (wait I shall
show you).
It has further come in his evidence that shortly after PW1 Pawan
reached home, 5-6 boys visited house of PW1 Pawan raising shouts which
prompted PW1 Pawan to make a phone call to appellant Samadhan to ask him
as to why he had sent boys towards his house and it is thereafter, PW1 Pawan
claims that appellant Samadhan asked him to come to Buddha Vihar located at
N6, When PW1 Pawan and deceased Kapil, his younger brother, reached said
place, it is stated that both appellants and their two associates started
assaulting PW1 Pawan. That time it is stated that appellant Kishor took out a
knife from his waist part and gave blows on chest, stomach, waist and hand of
Kapil after which he fell down. PW1 Pawan claims that he sought help from
PW3 Chandrakant and thereafter, deceased was shifted to hospital and at
around 06:00 a.m. in the following morning Kapil was reported to be dead
and thereafter, FIR was lodged.
Inspite of extensive cross-examination of PW1 Pawan, it is noticed that
neither the first incident nor the second incident of assault is seriously
questioned. Cross-examination is rather confined to about any previous
quarrel, about previous talks, about how he came to know about phone
number of appellant Samadhan, about appellant Samadhan to be customer of
his shop, from whom he heard regarding appellant to be of a bad element,
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timing of Pan stall, timing of reaching hospital, how much time spent in
hospital and whether information was passed to Police while in hospital i.e.
Kamalnayan Bajaj hospital and MGM hospital. Consequently, there is little or
no cross-examination about actual assault, which took place including initial
beating by fist and kicks and thereafter, appellant Kishor stabbing deceased.
8. Another witness PW2 Vishal, in our opinion, is crucial for the simple
reason that he is an independent witness. He is a chance witness as he seems
to be passing by the spot to meet his friend Pushkar residing in Sambhaji
Colony. He deposed that when he and his friend were chatting at Pan stall, he
saw PW1 Pawan and his brother Kapil standing nearby. After 5-10 minutes,
appellants came there hurling abuses to PW1 Pawan and they assaulted PW1
Pawan by hands and legs. This witness has stated that when deceased Kapil
intervened the quarrel and questioned about assault on his brother, both the
appellants started assaulting him also. During the assault by these two
persons alongwith two of their associates, appellant Kishor took out knife and
inflicted 5-6 blows on deceased i.e. on waist, abdomen and chest as a result of
which deceased fell down. This witness stated that he himself, his friend
Pushkar went to lift him and by that time, PW3 Chandrakant also came there
and they all shifted injured to MGM hospital and Doctors at MGM hospital told
that condition is critical and so injured should be taken either to GHATI or
Kamalnayan Bajaj hospital and therefore, they shifted him to Kamalnayan
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Bajaj hospital where Doctor advised surgery to heart. This witness stated that
he himself as well as his associated Pushkar spent entire night in the hospital.
In the morning at around 06:00 a.m., Doctor declared Kapil dead. He has
identified accused present in the Court.
Even this witness is not seriously questioned about the occurrence as
cross-examination pertains to questions as to whether he is neighbour of
informant, and with whom he was that day i.e. whether with his friend
Pushkar or informant and his brother. He is asked at which spot he was when
the incident took place. He had denied friendly relations with PW1 Pawan or
deceased. He is unable to state names of 3-4 persons accompanied accused on
that day. He has denied that there was darkness at the spot. Rest are all
denial.
9. PW3 Chandrakant in his evidence at Exh.52 stated that on the night of
16-01-2013 at 10:30 p.m. while he was taking dinner in a programme near his
house, he heard shouts from the side opposite to his house. He claims to have
gone here and saw exchange of hot words between appellant Samadhan and
PW1 Pawan. He stated that at that time PW1 Pawan told him about blood
oozing from the stomach of his brother Kapil and requested him to bring
vehicle. Accordingly, he brought vehicle and shifted Kapil to MGM hospital
and from there to Kamalnayan Bajaj hospital. He again reiterated that when
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he had been to spot that time he saw that appellant Kishor was assaulting
Kapil with Sura.
In cross-examination he admitted that on the date of incident, appellant
Samadhan had made a phone call to him and this witness also made phone
call to PW1 Pavan and about again informant made phone call to this witness
at 23:21 hours. He admitted that he tried to settle the quarrel between boys.
Rest all is denial.
ANALYSIS AND CONCLUSION
10. On analysis of testimonies of PW1 Pawan, PW2 Vishal and PW3
Chandrakant, it is clearly emerging that on the night of 16-01-2013, there was
initial quarrel between PW1 Pawan and appellant Samadhan and subsequently
when PW1 Pawan and his deceased brother Kapil went to N6 on being called
by appellant, there was also assault initially by fist and kicks but subsequently
appellant Kishor stabbing deceased Kapil that night. Such version is
consistently and unequivocally coming from the mouth of not only informant,
brother of deceased, but even from PW2 Vishal, who is admittedly an
independent witness.
Inspite of being cross-examined, evidence about occurrence of assault
has remained intact in the evidence of both PW1 Pawan and PW2 Vishal. No
doubt PW3 Chandrakant seems to have reached later but he is party to shifting
of the injured to hospital. All three are naming appellants to be quarreling,
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abusing and assaulting. Therefore, here there is credible eye witness account
as well as injured witness account which has remained unshaken.
11. PW4 Vinod seems to be Pancha to recovery and discovery of knife, but
as rightly pointed out by learned Senior Counsel for the appellants, discovery
of knife, which was admittedly put to use by appellant Kishor, is shown to be
at the instance of appellant Samadhan. However, in the memorandum,
appellant Samadhan himself has made disclosure that knife used by appellant
Kishor was taken by himself for hiding. Consequently, even if there is recovery
and discovery in such a manner, in the light of availability of direct eye witness
account, which is of sterling quality, even if recovery discovery part is ignored,
still prosecution has by adducing credible evidence demonstrated that both the
appellants are responsible for death of deceased and are rightly held guilty by
invoking Section 34 of the IPC.
12. Now let us deal with fundamental objection raised by learned Senior
Counsel for the appellants regarding case not to be attracting offence under
Section 302 of the IPC but case will fall under Section 304 Part II of the IPC. It
is tried to be submitted that there was no premeditation. Appellant Kishor had
suddenly taken out knife. Learned Senior Counsel expressed possibility of
some quarrel and heated exchange of words resulting into the occurrence and
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hence, according to him, case would be of culpable homicide not amounting to
murder or clause 4thly of Section 300 of the IPC.
After pondering over above ground raised before us and on thoughtful
consideration and re-appreciation of the testimonies of PW1 Pawan and PW2
Vishal, we are not convinced that it is not a case of homicidal and is rather
case attracting offence under Section 304 Part II of the IPC for the simple
reason which is emerging from testimonies of PW1 Pawan and PW2 Vishal that
at around 10:00 p.m. on 16-01-2013 there was verbal exchange of abuses by
appellant Samdhan with PW1 Pawan. Some boys were sent by the appellant
Samdhan to the house of PW1 Pawan and on being questioned to that extent,
appellant Samadhan had dared PW1 Pawan to visit him at N6 and accordingly,
both PW1 Pawan and his brother Kapil went said spot. There is consistent
version of PW1 Pawan and PW2 Vishal about both appellants and their two
associates initially assaulting PW1 Pawan and deceased Kapil by fist and kicks
and thereafter, appellant Kishor taking out knife and mounting assault on
deceased, who questioned them for quarreling with his brother PW1 Pawan.
Injuries noted by PW5 Dr.Rathod, Autopsy Docor in column no.17 which are
running into three stab injuries, their sites and locations if taken into
consideration, by no means in our opinion, it can be said to be a fall-out of
sudden quarrel. Appellants had called PW1 Pawan to N6. Appellant Kishor
was already armed and equipped with deadly weapon like knife, which he has
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apparently put to use not once or twice but multiple blows exhibits his very
intention to commit murder. Occurrence is at the instance of appellant
Samadhan. Therefore, they both are rightly held guilty by the learned trial
Court. Taking into account quality of evidence, more particularly, the direct
evidence and medical evidence, it is a perfect case of homicidal death
attracting only and only offence under Section 302 read with 34 of the IPC
and nothing short of it.
13. We have gone through the judgment under challenge, learned trial
Court has correctly appreciated the evidence, findings are supported by sound
reasons and no perversity is brought to our notice so as to cause interference.
Therefore, finding no merits in the appeal, we proceed to pass following order.
ORDER
Criminal Appeal No.535 of 2017 stands dismissed.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
SPT
Signed by: Santosh P. Takalkar
Designation: PA To Honourable Judge
Date: 03/11/2023 15:08:14
