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2015 DIGILAW 340 (BOM)

Parvesh v. State of Maharashtra

2015-02-04

A.B.CHAUDHARI, P.N.DESHMUKH

body2015
JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by judgment and order dated 29.09.2012 passed by Sessions Judge, Gondia in Sessions Trial No. 87/2010, by which appellant No. 1-Pravesh was convicted for an offence punishable under section 307 of the IPC and sentenced to undergo imprisonment for life and also for an offence punishable under section 302 read with 34 of IPC and sentenced to undergo imprisonment for life and to pay fine and convicting appellant Nos. 2 and 3 for an offence punishable under section 302 read with section 34 of the IPC, the present appeal has been filed by them. In support of the appeal, Mr. Daga, learned counsel for the appellants, vehemently argued that the prosecution case was based on the sole testimony of the alleged eye witness Rupesh Bhoyar (P.W. 1) and he was admittedly the friend of the deceased Ankit and as such his evidence was required to be scrutinized by the learned trial Judge with full care and caution. The learned trial Judge, however, did not apply the said parameters while appreciating his evidence and straightway believed it and relying on his evidence, recorded the judgment of conviction. The learned counsel then contended that if the evidence of Rupesh (P W1) is ignored, then there is no other evidence for recording conviction of the appellants and, therefore, the judgment of the trial Court is clearly illegal and the appellants deserve to be acquitted of all the offences for which they were charged. The learned counsel for the appellants then contended that the other victim namely; Manoj, who was examined by the prosecution before the Court as prosecution witness No. 3, did not at all support the prosecution case about assault on his person by appellant No. 1. On the contrary, he turned hostile and since the victim himself did not state that he was assaulted, the prosecution has failed to prove the offence under section 307 of the IPC. However, by relying on some other witness i.e. Vicky Kathane (PW5), the trial Court recorded the order of conviction. He, therefore, submitted that the conviction of appellant No. 1 for an offence punishable under section 307 of the IPC for the alleged offence of committing deadly assault on Manoj is liable to be set aside. However, by relying on some other witness i.e. Vicky Kathane (PW5), the trial Court recorded the order of conviction. He, therefore, submitted that the conviction of appellant No. 1 for an offence punishable under section 307 of the IPC for the alleged offence of committing deadly assault on Manoj is liable to be set aside. At any rate, the Doctor did not depose about the injuries to Manoj as sufficient to cause death in ordinary course of nature and that is the another reason why conviction is liable to be set aside. Mr. Daga then contended that all the appellants should have been acquitted by the trial Court for the charge of offence of murder as the prosecution failed in proving the case. He then submitted that at any rate, the benefit of doubt should have been given to the appellants and should have been acquitted of all the charges levelled against them. In the alternative, Mr. Daga, learned counsel for the appellants, contended that insofar as appellant Nos. 2 and 3 are concerned, there is no evidence on record to show that there was premeditation between these three appellants for attacking the deceased Ankit. On the contrary, it is the prosecution case that suddenly on the spot of incident, appellant Nos. 2 and 3 had held deceased Ankit and appellant No. 1 had stabbed him. There is no evidence to show that appellant Nos. 2 and 3 were holding the deceased Ankit throughout and thus there was no offence of murder punishable under section 302 of IPC proved and hence the lesser offence at the most is said to have been committed. 2. Per contra, Mr. Mirza, learned A.P.P. for the State, supported the impugned judgment and order and submitted that though there is testimony of Rupesh (P.W. 1), the same is worth of believing or trustworthy and, therefore, the trial court has rightly recorded the conviction against the appellant. He, therefore, prayed for dismissal of the appeal. CONSIDERATION: 3. We have heard learned counsel for the rival parties. We have perused the entire evidence with the assistance of learned counsel for the rival parties. At the outset, we find that Rupesh (P.W. 1) is an eye witness to the incident. He was standing with the deceased Ankit near railway chouki when appellant No. 1 came there. CONSIDERATION: 3. We have heard learned counsel for the rival parties. We have perused the entire evidence with the assistance of learned counsel for the rival parties. At the outset, we find that Rupesh (P.W. 1) is an eye witness to the incident. He was standing with the deceased Ankit near railway chouki when appellant No. 1 came there. Thereafter, some altercation took place between appellant No. 1-Pravesh and Ankit and appellant Nos. 1, 2 and 3 held Ankit and appellant No. 1 stabbed him by knife. We quote relevant part of the evidence of Rupesh (P.W. 1) as under: "Incident occurred on 02.08.2010 at about 7.00 p.m. Incident occurred near railway chouki, Ambedkar ward Gondai. I was in the railway chouki. Ankit Nandagavali was with me. Accused Sandesh Ramteke was standing near. Accused No. 1 Pravesh Ramteke came there. Accused No. 1 told Ankit Nandagavali, that he came there, after committing half murder. The accused No. 1 informed Ankit Nandagavli to wash the knife. Ankit refused to wash knife. The accused No. 1 abused Ankit. Accused Sandesh asked Ankit, why he did not wash the knife. There was quarrel between them. Thereafter, accused No. 2 and 3 caught hold of Ankit Nandagavali and accused No. 1 stabbed Ankit Nandagavali by knife. When I intervened I sustained injury to my hand by knife. I raised the shouts "WACHVA WACHVA". Thereafter, all the accused ran away. When I was carrying Ankit in rickshaw to the hospital, he died. Amit, brother of Ankit was with me. I can identify the knife. The article No. 20 before the court is same knife. At the time of incident I was wearing blue colour bermuda and brown colour T shirt. The articles No. 11 and 12 are my bermuda and T shirt. Ankit was wearing white colour shirt with red colour print. The article No. 5 is shirt of Ankit. The article No. 8 is full pant of Ankit." 4. We have perused the cross-examination of this witness very carefully. We do not at all find any infirmity in the evidence of this eye witness to the incident. The above evidence of Rupesh (P.W. 1) is consistent and natural since he was standing with the deceased Ankit when the incident took place and not only that he also received injury to his hand by knife. We do not at all find any infirmity in the evidence of this eye witness to the incident. The above evidence of Rupesh (P.W. 1) is consistent and natural since he was standing with the deceased Ankit when the incident took place and not only that he also received injury to his hand by knife. We, thereafter find that there is evidence of Amit (PW2), brother of deceased Ankit, who stated that Rupesh (P.W. 1) informed him about the incident and they went to the Police Station and lodged the FIR Exh. -42 and 43. We have seen the FIR that was lodged immediately with Police Station by Amit. Reading of the FIR clearly shows that he was told by Rupesh (P.W. 1) about the incident of murder of his brother. Therefore, he lodged report about the same to Police. We are, therefore, satisfied that the quality of testimony of Rupesh (P.W. 1) is most natural as he was friend of deceased Ankit and was standing with him. In the cross-examination, his evidence has not at all been shaken. Apart from that, the scientific evidence, that has been produced by the prosecution also supports the prosecution case which also is a corroborative evidence to the quality testimony of Rupesh (P.W. 1). Instead of repeating the scientific evidence, we reproduce paragraphs 29 and 30 of the judgment of the trial Court as under: "29. The prosecution's witness No. 10 Dr. Arshiya Saiyad, is examined at Exh. 69. Dr. Saiyad, has deposed that on 04.08.2010, accused Pravesh Ramteke, Sandesh Ramteke and Nilesh Ramteke, were produced before her for collecting their blood. Dr. Saiyad, collected blood of all the accused and she filled form-B in her hand writing and thereafter, she handed over the sealed blood phials and form-B to the P.C. Exhs. 70, 71 and 72 are the forms-B. Dr. Saiyad has also deposed that on 04.08.2010, Manoj Kukreja and Rupesh Bhoyar, were produced before her at K.T.S. Hospital Gondia and she collected blood of Manoj Kukreja and Rupesh Bhoyar. Dr. Saiyad, handed over sealed phials along with forms-B to the P.C. Exhs. 73 and 74 are the forms-B of Manoj Kukreja and Rupesh Bhoyar. Saiyad has also deposed that on 04.08.2010, Manoj Kukreja and Rupesh Bhoyar, were produced before her at K.T.S. Hospital Gondia and she collected blood of Manoj Kukreja and Rupesh Bhoyar. Dr. Saiyad, handed over sealed phials along with forms-B to the P.C. Exhs. 73 and 74 are the forms-B of Manoj Kukreja and Rupesh Bhoyar. In this case, it has come in evidence of P.I. Mahajan, that he forwarded the property seized from the spot, all the seized clothes and phials containing blood and seized knife for analysis and examination to the Regional Forensic Science Laboratory Nagpur. It appears from the C.A. Report Exh. 93 that earth collected from the spot, cloths of deceased Ankit Nandagavali, were stained with human blood of group "A". The human blood was noticed on articles No. 9 and 10 the cloths seized from injured Manoj Kukreja. It is reported that article No. 11 barmuda and T shirt seized from Rupesh Bhoyar, were stained with human blood of group "A". It is reported by the C.A. That T Shirt, barmuda and white scarf, seized from accused No. 1 were stained with blood of group "A", blood was noticed on the T Shirt, scarf, seized from the accused No. 1. It is reported by C.A. That human blood of group "A" was found on T shirt, seized from accused No. 2. It is reported that article No. 20 knife was also stained with blood of group "A". It is reported by C.A. That articles No. 9 and 10 cloths of Manoj Kukreja, were having stains of blood group "B". 30. It is reported by C.A. that blood of deceased Ankit Nandagavali was of group "A" blood of Rupesh Bhoyar was of group "A" blood of accused No. 3 and accused No. 2 was of group "B". C.A. was unable to determine the blood group of accused No. 1. On the basis of this evidence, it is submission of prosecution that guilt of accused is proved beyond reasonable doubt." 5. We are, therefore, in agreement with the trial Court that appellant No. 1 had stabbed the deceased Ankit repeatedly by means of knife. We, therefore, hold that the appellant No. 1-Pravesh, who stabbed the deceased Ankit by means of knife, committed his murder. 6. The next question is about guilt of other appellant Nos. 2 and 3. We are, therefore, in agreement with the trial Court that appellant No. 1 had stabbed the deceased Ankit repeatedly by means of knife. We, therefore, hold that the appellant No. 1-Pravesh, who stabbed the deceased Ankit by means of knife, committed his murder. 6. The next question is about guilt of other appellant Nos. 2 and 3. From the perusal of the evidence of Rupesh (P.W. 1), we find that appellant Nos. 2 and 3 had not come with accused No. 1-Pravesh on the spot of incident and that is not the case of the prosecution also. This clearly means that appellant Nos. 2 and 3 never knew about the intention of appellant No. 1 to commit murder of the deceased Ankit. In the absence of intention on the part of appellant Nos. 2 and 3 to commit murder of Ankit, we think, both appellant Nos. 2 and 3 cannot be held guilty of murder but must be held guilty of culpable homicide not amounting to murder. Consequently, we find that appellant Nos. 2 and 3 are guilty of offence punishable under section 304-II of the IPC since they had no intention, muchless, common intention. 7. Insofar as conviction under section 307 IPC is concerned, we find from the record that the trial Court has convicted the appellants for the said offence of attempt to commit murder of Manoj Kukreja (PW3). The only reason given by the trial Court is that Manoj turned hostile but other witnesses supported the prosecution case. What we find is that Manoj is the victim who was stabbed by Pravesh earlier to the incident. In the first place, the incident about stabbing of Manoj has no connection whatsoever with the incident of murder of Ankit. Be that as it may. The fact remains that Manoj-the victim, clearly turned hostile and denied that appellant No. 1-Paresh stabbed him. The prosecution also did not prove that the injury caused to Manoj was sufficient to cause death. In our opinion, when Manoj (PW3) himself has turned hostile and emphatically denied any attack on him by appellant No. 1, the trial Court committed wrong in convicting the appellant No. 1 for an offence punishable under Section 307 of the IPC and sentencing him to life imprisonment. To sum up, the appeal must succeed in part. In the result, we pass the following order. To sum up, the appeal must succeed in part. In the result, we pass the following order. ORDER "(i) Criminal Appeal No. 479/2012 is partly allowed. (ii) The conviction and sentence for the offence punishable under Section 307 of the Indian Penal Code imposed against appellant/accused Pravesh S/o. Manohar Ramteke, is set aside. (iii) The conviction for the offence punishable under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed against appellant/accused Pravesh S/o. Manohar Ramteke is upheld and his appeal to that extent is dismissed. (iv) Conviction and sentence under Section 302 of the Indian Penal Code imposed against appellants/accused Sandesh S/o. Manohar Ramtke and Nilesh S/o. Manohar Ramteke is set aside and is modified by convicting appellants/accused Sandesh S/o. Manohar Ramteke and Nilesh S/o. Manohar Ramteke for the offence punishable under Section 304-II of the Indian Penal Code and they are sentenced to undergo rigorous imprisonment for six years. (v) Set off under section 428 of the Code of Criminal Procedure be given to the appellants/accused for the period which they have already undergone."