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2013 DIGILAW 1295 (BOM)

Sachin Damu Ubale v. State of Maharashtra

2013-07-11

MRIDULA BHATKAR, V.K.TAHILRAMANI

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JUDGMENT Mridula Bhatkar, J. 1. These two appeals are directed against the judgment and order dated 12.9.2008 passed by the learned Ad-hoc Additional Sessions Judge, Sewree. Mumbai, in Sessions Case No. 663 of 2004, convicting all the three accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for murdering one Shankar Yadav. The offence has taken place in the vicinity of Kurar Police Station on 5.6.2004 between 1.00 a.m. to 1.15 a.m. Deceased Shankar Yadav and other persons used to sleep outside on the handcarts. On the fateful night, the deceased and other persons including PW-2 Vinod Gupta and PW-7 Shankar Shah were sleeping on the handcarts. In the midnight i.e. at 12.30 a.m. on 5.6.2004 a group of boys including accused No. 1 Sachin and accused No. 2 Sandip arrived there and they all were talking loudly. So the deceased took objection and requested them to keep their volume low. The boys had verbal altercation on that issue and thereafter, they left the place. The deceased and other persons thereafter slept. However, after sometime, accused No. 1 Sachin and accused No. 2 Sandip arrived along with accused No. 3 Umesh Sahani. Umesh Sahani was carrying wooden baton and all the three started assaulting Shankar Yadav. Accused Nos. 1 and 2 assaulted deceased Shankar with fist and kick blows and accused No. 3 Umesh Sahani gave a blow of wooden rip on the head of the deceased. Thereafter, after hearing commotion, PW-2 Vinod Gupta and PW-7 Shankar Shah awoke and intervened. All the accused ran away from the spot. The accused assaulted one more person i.e. Shankar Gaund who had intervened and he sustained simple injuries. Deceased Shankar Yadav succumbed to the injuries on the spot and dead body was sent to the hospital for post-mortem. In the post-mortem, it was found that deceased died due to head injuries. PW-2 Vinod Gupta rushed to Kurar Police Station and he gave a complaint. Police recorded the F.I.R. at C.R. No. 145 of 2004 at Kurar Police Station against the accused for the offence under Section 302 of IPC. After registering the offence, on the same day i.e. on 5.6.2004 in the morning, the accused Nos. 1 and 2 were arrested and after two days i.e. on 7.6.2004 accused No. 3 was arrested. During the course of investigation, police recorded statements of the witnesses. After registering the offence, on the same day i.e. on 5.6.2004 in the morning, the accused Nos. 1 and 2 were arrested and after two days i.e. on 7.6.2004 accused No. 3 was arrested. During the course of investigation, police recorded statements of the witnesses. They recovered weapon i.e. wooden baton and after completion of the investigation, they filed the charge sheet. The case was committed by the Magistrate to the Court of Sessions. 2. The learned Sessions Judge framed charge against all the accused Nos. 1 to 3 under Section 302 read with Section 34 of the IPC for committing murder of Shankar Yadav and also under Section 323 read with Section 34 of the IPC for causing hurt to one Shankar Gaund with wooden rip. The case was proceeded and the trial was concluded in the conviction of three accused for the offence of murder of Shankar Yadav, however, all the three accused were acquitted from the offence for causing hurt to Shankar Gaund thereby punishable under Section 323 of IPC. The accused being aggrieved by the said judgment and order filed two separate appeals one by accused Nos. 1 and 2 and other one was by accused No. 3. Pending the appeals, accused Nos. 1 and 2 moved application for bail and it was allowed. Thus, the accused Nos. 1 and 2 are on bail since 26.2.2010. Accused No. 3 Umesh was granted bail during the trial however, after his conviction by the Sessions Court, he was taken in custody. 3. The learned counsel for the appellants submitted that the trial Court ought to have appreciated the evidence in proper perspective. It was submitted by the learned counsel for the accused Nos. 1 and 2 that at the time of the incident, accused Nos. 1 and 2 were not having any deadly weapon in their hands. The learned counsel for the accused No. 3 argued that accused No. 3 was in fact, not present in the beginning when the altercations took place between the deceased and the accused Nos. 1 and 2. He submitted that accused No. 3 was called by accused Nos. 1 and 2 and therefore, he arrived at the spot. He submitted that there is only one blow given by accused No. 3 by the wooden rip on the head of the deceased. 1 and 2. He submitted that accused No. 3 was called by accused Nos. 1 and 2 and therefore, he arrived at the spot. He submitted that there is only one blow given by accused No. 3 by the wooden rip on the head of the deceased. He further submitted that the wooden rip was recovered but it was without blood stains. He further submitted that the prosecution could not prove the recovery panchnama as the Pancha did not support the case of the prosecution. He submitted that there is a very weak evidence against this accused and prayed for acquittal. The learned counsel further submitted that Shankar Gaund, who as per the prosecution case, was injured in the same incident, was star witness of the prosecution, however, the prosecution just chose not to examine him and that is detrimental to the prosecution case against the accused. He further submitted that as this injured person was not examined, though the trial Court acquitted the accused from the charge under Section 323 of the IPC, the accused should have been given the benefit of non-examination of the said witness on the point of commission of offence under Section 302of the IPC. 4. The learned Prosecutor while opposing these appeals has submitted that there are two eye witnesses i.e. PW-2 Vinod Gupta and PW-7 Shankar Shah who supported the prosecution case and these two witnesses have seen the incident and PW-7 Shankar knew the accused by their names. She further submitted that though Recovery Pancha did not support the prosecution case, the Investigating Officer PW-9 Jawalkar has stated about the recovery of the wooden baton at the instance of the accused No. 3. 5. The case of the prosecution is based on the evidence of two eye witnesses i.e. PW-2 Vinod Rampal Gupta and PW-7 Shankar Rampreet Shah. PW-2 Vinod Gupta has stated that he along with Shankar Yadav and Shankar Gaund used to sleep in the night near the Sai temple at Kandivali (E). He has deposed that they all used to sleep on the handcarts. On the night intervening between 4.6.2004 and 5.6.2004, some boys came and they were talking in loud voice. So, the deceased Shankar Yadav warned them not to talk loudly as they were sleeping. There was quarrel and thereafter boys left the place and he slept. He has deposed that they all used to sleep on the handcarts. On the night intervening between 4.6.2004 and 5.6.2004, some boys came and they were talking in loud voice. So, the deceased Shankar Yadav warned them not to talk loudly as they were sleeping. There was quarrel and thereafter boys left the place and he slept. However, after sometime, he heard shouts and he woke up and he saw one boy was assaulting Shankar Yadav with wooden rip and other two boys were beating Shankar Yadav with fist blows. He has further stated that he called his friend PW-1 Arunkumar Mishra and took Shankar Yadav to Bhagwati Hospital but he was declared dead. Witness was cross-examined, however, his evidence on the point of assault was not destroyed by the defence. PW-7 Shankar Shah has stated in a similar way and he corroborated that he had seen accused Nos. 1 and 2 assaulting the deceased Shankar Yadav with fist and kick blows and accused No. 3 assaulting Shankar Yadav with stick on his head. This witness has stated that he knew all the three accused as they were staying in a same locality and he knew all of them by their respective names and therefore, could identify all of them at the time of assault and in the Court. Thus, there cannot be any mistaken identity about all the three accused. In the recovery, though the stick was recovered, but it was without blood stains. The case of the prosecution stands entirely on the evidence of eye witnesses. It is settled position of law that once the prosecution case stands on a strong and reliable evidence of one eye witness, that is sufficient to convict the accused. In the present case, there are two eye witnesses who corroborated each other in all material particulars regarding the incident and about the identity of the accused. Though, PW-2 Vinod Gupta has not specifically mentioned the names of all the three accused, the evidence of PW-7 Shankar Shah stating the previous acquaintance and the names of all the three accused as assailants, is unshaken by the defence. The incident of assault has taken place in a very short span. There was no previous preparation, planning or premeditation of the assault. The incident of assault has taken place in a very short span. There was no previous preparation, planning or premeditation of the assault. From the evidence of these two witnesses, it can easily be inferred that the motive or the cause of the assault was verbal altercation which took place between the deceased and accused Nos. 1 and 2 just nearly half an hour before the assault. It is an admitted fact that at the time of the assault, the accused Nos. 1 and 2 did not have any weapon, except they used kick and fist blows. Accused No. 3 was holding a wooden rip and as per the evidence of PW-2 Vinod Gupta and PW-7 Shankar Shah, he gave only one blow by wooden rip on the head of the deceased. As per the medical evidence of PW-4 Dr. Rambhau Laxman Sanap, the deceased had following external injuries: "I) CLW over right parietal area of scalp 4 cms. x 1 cm, scalp deep; II) Contusion over right side of neck- 3 cms. in diameter; III) Contusion over frontal area of scalp left side 5 cms. x 1 cm." 6. Considering the evidence of eye witnesses which is very strong, creditworthy and believable, the case of the prosecution as held by the trial Court, is proved to the extent that the accused Nos. 1, 2 and 3 have assaulted the deceased and in the said assault, he died. The learned counsel for the defence alternatively submitted that this is not a case under Section 302 of the IPC but it is a case of culpable homicide not amounting to murder covered under Exception 4 to Section 300 of the IPC. We have considered this submission on the backdrop of the evidence of the eye witnesses on the point of assault, weapon used and the nature of the injuries sustained by the deceased as the eye witnesses have stated that the accused No. 3 was holding wooden rip and he inflicted a blow on the head of the deceased with wooden rip which appears to be vital blow to which, he succumbed to the injuries. The post-mortem notes (Exh. 43) disclosed the three wounds which are consistent with the evidence of the Doctor. The post-mortem notes (Exh. 43) disclosed the three wounds which are consistent with the evidence of the Doctor. These injuries are two contusions one on the neck on right side and another on the frontal area of scalp right side and one CLW on the right parietal area of the scalp, scalp deep. His scalp was fractured on the parietal area to the length of 3 cms. Thus, it shows that fracture was due to CLW which was on the right parietal area, which led to sub-dural hemorrhage. Two contusion injuries, one on the neck and other on the frontal area of scalp, were found externally. They might have been caused due to fist and kick blows or by possibility of manhandling at the time of the assault. Thus, it appears that it is a case of one blow by wooden rip by accused No. 3 which has unfortunately resulted in the death of the deceased. Accused Nos. 1 and 2 have assaulted the deceased with fist and kick blows. Thus, considering the nature of the injuries within the short span and the manner in which the incident has taken place, we are of the opinion that we cannot attribute the ingredients of murder to this assault. It is also to be noted that prior to the incident of actual assault, there was quarrel between the deceased and accused Nos. 1 and 2 and due to that quarrel, the accused Nos. 1 and 2 became angry and they called accused No. 3 who infact, was not present when the verbal alteration took place. This has happened in a spur of moment and heat of anger. Thus, we are of the opinion that this case is squarely covered by Exception 4 to Section 300 of the IPC as culpable homicide not amounting to murder and thereby punishable under Section 304 Part-II of the IPC. We therefore, to that extent, interfere in the findings and the conviction given by the learned Sessions Court. The finding of the learned Sessions Court that accused were found guilty is maintained, however, it is altered on the point of murder and the sentence and accordingly, the following order is passed. "ORDER 1) The accused Nos. We therefore, to that extent, interfere in the findings and the conviction given by the learned Sessions Court. The finding of the learned Sessions Court that accused were found guilty is maintained, however, it is altered on the point of murder and the sentence and accordingly, the following order is passed. "ORDER 1) The accused Nos. 1 to 3 are therefore, held guilty for commission of the offence of culpable homicide not amounting to murder and thereby punishable under Section 304 Part-II of the IPC; 2) The accused Nos. 1 and 2 hereby sentenced to undergo R.I. for two years and fine of Rs. 3000/- each i/d R.I. for four months each; 3) The accused No. 3 is sentenced to undergo R.I. for six years and fine of Rs. 3000/- i/d R.I. for four months; 4) The rest of the judgment and order of the trial Court is maintained; 5) All the accused are entitled to get the benefit of set off for the period for which they were in custody; 6) The accused shall serve out the remaining sentence, if any. 7) Writ of order is expedited. 8) Office to communicate this order to the appellants and the Jail Superintendent in which Jail, the appellant is lodged. 9) At this stage, we must record our appreciation for Mr. Arfan Sait appointed from the High Court Legal Services Committee Bombay to represent the appellant in Cri. Appeal No. 373 of 2009. We find that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs. 2500/-."