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2007 DIGILAW 1473 (BOM)

Manoj s/o Rama Mohite v. State of Maharashtra

2007-10-10

P.V.HARDAS, S.P.KUKDAY

body2007
ORAL JUDGMENT : (PER : HARDAS, J.) . The appellant/original accused No.1 who stands convicted for offence punishable under section 302 and 323 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2,000/- with a default condition of undergoing further R.I. for six months in the event of non payment of fine and R.I. for one year and fine of Rs.1,000/- with a default condition of undergoing further R.I. for two months in the event of non payment of fine, respectively, with a direction that substantive sentences shall run concurrently by the IVth Adhoc Additional Sessions Judge, Dhule, by judgment dated 29.8.2005, in Sessions Case No.18 of 2005, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: . P.W.8 Rajesh Akhade, an A.P.I. attached to Pimpalner Police Station recorded the report lodged by P.W.1 Mahfooz Beg Mirza at Exh.26 on 18.1.2005. On the basis of the said report an offence vide Crime No.7 of 2005, under section 302, 146, 147, 148, 149, 323, 504 and 506 of the I.P.C. came to be registered. He thereafter proceeded to the Civil Hospital, Dhule and saw the dead body of deceased Mohammad Kasim and held an inquest and drew the panchanama of inquest of deceased Mohammad Kasim in the presence of panch at Exh.14. Dead body of deceased Mohammad Kasim was thereafter referred for post mortem examination and the post mortem was conducted by P.W.5 Dr. Vivek Nukte. P.W.5 Dr. Vivek Nukte noticed the following external injuries on the dead body of Mohammad Kasim. 1. Abrasion 1.5 cm to 2 cm. one below right eye and one below left eye. Its colour was reddish black. 2. There was abrasion on left elbow joint. 3. There were two contusions 1 x 1 reddish in black colour near on left side maxilla region, near nose, blackish and coloured. On palpation, he noticed fracture of 7th, 8th and 9th ribs of right side at anterior axillary line. He opined that all the injuries were ante-mortem injuries. On internal examination, he noticed that right lung had collapsed, shrivelled contracted. Pleura was also torn. On right side 7th, 8th and 9th ribs surface. Towards left lung was also collapsed partially and congested. Right lung lower blow was lacerated. He opined that all the injuries were ante-mortem injuries. On internal examination, he noticed that right lung had collapsed, shrivelled contracted. Pleura was also torn. On right side 7th, 8th and 9th ribs surface. Towards left lung was also collapsed partially and congested. Right lung lower blow was lacerated. He therefore opined that cause of death was due to cardio respiratory arrest due to asphyxia due to tension pneumothorax due to fracture of ribs due to impact of hard and blunt object. The post mortem report is at Exh.35. The report of chemical analysis at Exh.36 did not disclose the presence of any recognizable poison in the viscera. He further opined that injuries mentioned in column No.17 were not possible by fists and kick blows but were possible by blows of article 1 (Crutch). On 19.1.2005, P.W.8 A.P.I. Akhade drew the scene of the offence panchanama in the presence of panch witnesses at Exh.37. Clothes of deceased came to be seized under panchanama at Exh.16. The accused came to be arrested vide arrest panchanama at Exh.15. Accused No.1 had produced a crutch which came to be seized vide panchanama at Exh.28 in the presence of P.W.2 Ayyubkhan. Statements of witnesses came to be recorded on 19.1.2005 and further to the completion of investigation, a charge-sheet against the appellant came to be filed in the Court of the Judicial Magistrate, First Class at Sakri on 30.3.2005. 3. On committal of case to Court of Sessions, charge vide Exh.4 came to be framed against the appellant and other six accused for offence punishable under section 147, 148, 302 read with section 149, 323 read with section 149 of I.P.C. All the accused pleaded their innocence and claimed to be tried. Prosecution in support of its case examined eight witnesses. Trial Court on appreciation of the evidence convicted and sentenced the accused No.1 while acquitting original accused Nos.2 to 7. 4. Before we advert to the submissions advanced before us by Mr.Chatterji, learned Counsel appearing on behalf of the appellant, it would be useful to briefly refer to the evidence of eye witnesses. Prosecution has heavily relied on the testimony of P.W.1 Mahfooz Beg, P.W.3 Mohsin, P.W.4 Shaikh Jabbar and P.W.6 Munaf Shah as eye witnesses to the incident. P.W.1 Mahfooz Beg states that deceased Mohammad Kasim was owning an auto-rickshaw while the appellant-accused No.1 was running a pan stall. Prosecution has heavily relied on the testimony of P.W.1 Mahfooz Beg, P.W.3 Mohsin, P.W.4 Shaikh Jabbar and P.W.6 Munaf Shah as eye witnesses to the incident. P.W.1 Mahfooz Beg states that deceased Mohammad Kasim was owning an auto-rickshaw while the appellant-accused No.1 was running a pan stall. On 18.1.2005 at about 7.00 to 7.30 p.m. while P.W.1 Mahfooz Beg and his friend P.W.3 Mohsin were standing in front of the house of one Dr. Tatiya, deceased Mohammad Kasim came there in an auto-rickshaw. He stopped the auto-rickshaw near them and was talking to them. Accused No.1 Manoj came there and asked Kasim as to why he had swerved the auto-rickshaw and began to abuse deceased Kasim. Accused Nos.2 to 7 also came there and thereafter all the accused started abusing deceased Kasim and assaulted him by fists and kicks. Accused No.1 thereafter assaulted Kasim by a crutch which was in his hand. Blows of crutch were given on the stomach and chest of deceased Kasim. P.W.1 Mahfooz Beg states that he attempted to rescue Kasim but accused Nos.6 and 7 asked him to leave the place and threatened him with assault. Accused Nos.6 and 7 have also slapped deceased Kasim. Kasim became unconscious and fell on the ground and the accused thereafter left the scene of the offence. P.W.1 Mahfooz Beg and P.W.3 Mohsin took Kasim to his house in the auto-rickshaw and narrated the incident to the mother and grandmother of deceased Kasim. The relatives of deceased Kasim then shifted him to the Government hospital at Pimpalner. In the night P.W.1 Mahfooz Beg learnt that Kasim had succumbed to his injuries, and therefore, went to Pimpalner Police Station and lodged his report. In cross-examination, Mahfooz Beg has admitted that house of Manoj (accused No.1) is adjacent to the scene of the incident. He has further admitted in the cross-examination that Pimpalner Police Station is at 15 minutes walking distance from the scene of the incident. He then states that he learnt about death of Kasim at about 9.30 to 9.45 p.m. He has admitted not to have accompanied the relatives of Kasim to the hospital. He has further admitted that accused No.1 Manoj was using only one crutch at the time of the incident. He has also admitted that he had seen the accused walking with the help of only one crutch. He has further admitted that accused No.1 Manoj was using only one crutch at the time of the incident. He has also admitted that he had seen the accused walking with the help of only one crutch. He then admits that accused No.1 Manoj can stand without the help of crutch but he cannot walk without it. He then admits that he and Mohsin were alone present when accused had assaulted deceased Kasim. He has admitted that he knows P.W.4 Shaikh Jabbar and P.W.6 Munaf. 5. P.W.3 Mohsin also deposes that on the day of the incident he along with P.W.1 Mahfooz Beg was standing on the Tembha road at about 7.00 to 7.30 p.m. in front of the house of Dr. Tatiya. At that time deceased Kasim came there in his auto-rickshaw. While deceased Kasim was talking with them, accused No.1 came there and asked Kasim as to why he swerved the auto-rickshaw. Accused No.1 thereafter abused Kasim. Accused Nos.2 to 7 also arrived there and the accused Nos.2 to 7 abused deceased Kasim and all the accused started assaulting Kasim by fists and kicks. Accused No.1 Manoj dealt blows of crutch on the chest and stomach of deceased Kasim. Mohsin states that he attempted to rescue Kasim but accused No.6 told him to leave the place else he too would be assaulted. Accused Nos.6 and 7 had stopped Kasim and thereafter Kasim fell on the ground unsconscious. All the accused thereafter left the scene of the offence and P.W.1 Mahfooz Beg and P.W.3 Mohsin and all other people took Kasim to his house in an auto-rickshaw. They narrated the incident to the mother and grandmother of deceased Kasim. The relatives thereafter took Kasim to the hospital. Mohsin states that he learnt in the morning that Kasim had succumbed to his injuries. In cross-examination he has admitted that he knows P.W.6 Munaf Shah and p.W.4 Shaikh Jabbar. He states that both these witnesses were present there when he and P.W.1 Mahfooz Beg had placed Kasim in the auto-rickshaw. He has denied the suggestion that both the legs of accused No.1 are affected by polio. He has admitted as correct that accused No.1 cannot walk without the help of a crutch. He has denied the suggestion that accused No.1 cannot stand without the aid of a crutch. He has denied the suggestion that both the legs of accused No.1 are affected by polio. He has admitted as correct that accused No.1 cannot walk without the help of a crutch. He has denied the suggestion that accused No.1 cannot stand without the aid of a crutch. He has also admitted that there was no talk between him and P.W.1 Mahfooz Beg regarding informing the police about the assault on Kasim. He has admitted that he had not met P.W.1 Mahfooz Beg during the night. 6. P.W.4 Shaikh Jabbar states that on the day of the incident he was present in his house and he heard commotion near his house and therefore came out of his house. He went near the dispensary of Dr. Tatiya and noticed accused No.1 abusing Kasim. At that time accused No.2 to 7 came there and they also abused Kasim. Thereafter the accused had a scuffle with deceased Kasim and started assaulting him with fists. Accused No.1 inflicted blows of crutch on the chest and stomach of Kasim. P.W.1 Mahfooz Beg and P.W.3 Mohsin were trying to rescue Kasim but accused No.6 told him not to interfere and threatened them with assault. Kasim became unconscious and fell on the ground. P.W.1 Mahfooz Beg and P.W.3 Mohsin then took Kasim to his house in an auto-rickshaw. He states that he learnt that Kasim succumbed to his injuries. In cross-examination he has stated that he did not meet P.W.1 Mahfooz Beg and P.W.3 Mohsin when the quarrel between deceased Kasim and the accused was in progress. He states that he had however seen P.W.1 and p.W.3 and they had also seen him at the time of the incident. He has admitted as true that accused No.1 cannot walk without a crutch. He has denied the suggestion that accused No.1 cannot stand without the aid of a crutch. 7. P.W.6 Munaf Shah states that he was present in his house on the day of the incident and on hearing commotion came out of his house and went near the scene of the incident. He saw accused No.1 abusing deceased Kasim by questioning him as to why he swerved his auto-rickshaw. The other accused i.e. accused Nos.5 to 7 thereafter came there and accused No.1 Manoj assaulted Kasim by his crutch on the chest and on the stomach by a handle of the crutch. He saw accused No.1 abusing deceased Kasim by questioning him as to why he swerved his auto-rickshaw. The other accused i.e. accused Nos.5 to 7 thereafter came there and accused No.1 Manoj assaulted Kasim by his crutch on the chest and on the stomach by a handle of the crutch. He states that thereafter Kasim was taken in an auto-rickshaw by P.W.1 Mahfooz Beg and P.W.3 Mohsin. In cross-examination omission has been duly proved that he had not stated about accused No.1 assaulting deceased Kasim by the handle of crutch. Omission has been duly proved that he had not stated in his statement that accused No.1 was asking Kasim as to why he had swerved his auto-rickshaw. 8. Mr.Joydeep Chatterji, learned Counsel appearing on behalf of the appellant has urged before us that the evidence of the eye witnesses does not disclose that the accused had intended to commit the murder of deceased Kasim. According to the learned Counsel for the appellant, therefore, accused No.1 would be liable to be punished for an offence punishable under section 304 Part II of the I.P.C. Mr. Varale, learned A.P.P. appearing on behalf of respondent-State has strongly opposed this submission and has stated that accused No.1 had inflicted injuries by means of a crutch and therefore intention to commit murder of deceased Kasim can be attributed to accused No.1. 9. It is true that this is not a premeditated offence in the sense that it was not pre-planned attack on deceased Kasim. It appears that deceased Kasim had swerved his auto-rickshaw and that had angered accused No.1 and accused No.1 questioned deceased Kasim as to why he had swerved his auto-rickshaw. The other accused have been acquitted by the trial Court as the medical evidence did not support the version of the eye witnesses in respect of the assault by fists and kick blows. The accused No.1 was carrying a crutch which because of polio he was required to use for walking. It cannot be said that the accused No.1 had arrived at the scene of the offence armed with any weapon. Accused No.1 in that sudden quarrel which had flared between him and deceased Kasim had wielded the crutch and had assaulted deceased Kasim. It cannot be said that the accused No.1 had arrived at the scene of the offence armed with any weapon. Accused No.1 in that sudden quarrel which had flared between him and deceased Kasim had wielded the crutch and had assaulted deceased Kasim. Unfortunately because of the blows of the crutch, there was fracture of the 7th, 8th and 9th ribs as a result of which deceased Kasim succumbed to his injuries. Looking to the nature of the weapon that was used and the manner in which the injuries had been inflicted on deceased Kasim and the prelude to the incident, it cannot be said that accused No.1 had inflicted the injuries intending to commit murder of deceased Kasim. The injuries had been inflicted to deceased Kasim in the heat of quarrel which had flared up suddenly on account of deceased swerving his auto-rickshaw. In these circumstances, therefore, according to us at the most accused No.1 can be held guilty for offence punishable under section 304 Part II of the I.P.C. 10. Mr.Joydeep Chatterji, learned Counsel appearing on behalf of the appellant has urged before us that the appellant has been in jail for a period of approximately two and half months prior to his conviction and has been in jail since 29.8.2005 after his conviction. According to us, releasing the appellant on the period of sentence undergone would be wholly disproportionate to the crime with which the appellant is now convicted. According to us, therefore, a sentence of R.I. for five years, maintaining the sentence of fine and the conviction under section 323 of I.P.C. and sentence thereof with a direction that the sentences shall concurrently would meet the ends of justice. 11. After giving our anxious consideration to the submissions advanced before us by the learned Counsel appearing on behalf of the appellant, according to us, accused No.1 deserves to be acquitted of the offence punishable under section 302 of the I.P.C. and instead is liable to be convicted for offence punishable under section 304 Part II of the I.P.C. 12. Accordingly Criminal Appeal No.818 of 2005 is partly allowed and the conviction of the appellant for offence punishable under section 302 of the I.P.C. is hereby quashed and set aside and instead he is convicted for offence punishable under section 304 Part II of the I.P.C. and sentenced to R.I. for five years. Accordingly Criminal Appeal No.818 of 2005 is partly allowed and the conviction of the appellant for offence punishable under section 302 of the I.P.C. is hereby quashed and set aside and instead he is convicted for offence punishable under section 304 Part II of the I.P.C. and sentenced to R.I. for five years. The accused would be entitled for set-off for the period of imprisonment which he has already undergone. We maintain the sentence of fine and the default sentence. The conviction of appellant-accused for offence punishable under section 323 of the I.P.C. and the sentence passed thereon remains unaltered. All the substantive sentences shall run concurrently.