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2016 DIGILAW 184 (BOM)

Sudhir Waman Pawar v. State of Maharashtra

2016-01-28

SHALINI PHANSALKAR JOSHI, V.K.TAHILRAMANI

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JUDGMENT : V.K. Tahilramani, A.C.J. This appeal is preferred by the appellants - original accused Nos. 1 and 2 against the judgment and order dated 25.08.2009 passed by the learned Ad-hoc Additional Sessions Judge - 1, Malegaon, Dist. Nashik in Sessions Case No. 10 of 2000. By the said judgment and order, the learned Session Judge convicted the appellant i.e accused No. 1 - Sudhir Waman Pawar for the offences punishable under Sections 302 and 307 of IPC. For the offence punishable under Section 302 of IPC, the appellant - Sudhir Waman Pawar was sentenced to life imprisonment and for the offence punishable under Section 307 of IPC, he was sentenced to rigorous imprisonment for five years and fine of Rs. 1500/-, in default, R.I. for one year. Further the learned Sessions Judge convicted the appellant i.e accused No. 2 - Keda Waman Pawar under Section 326 r/w 34 of IPC and sentenced him to suffer rigorous imprisonment for five years and fine of Rs. 1000/-, in default R.I. for one year. The learned Additional Sessions Judge directed that the substantive sentences of imprisonment awarded to appellant Sudhir Waman Pawar shall run concurrently. 2. The prosecution case briefly stated, is as under: (a) Deceased Rajpal, injured witness PW 3 Sunil and the complainant - PW 1 Jaypal were brothers. They were all residing jointly along with their parents and elder sister at Malegaon. On 26.10.1999, appellant No. 1 Sudhir abused Jagdish - the brother-in-law of PW 1 Jaypal, hence, Jaypal's sister Annapurna and Jaypal's brother Sunil went to the house of appellant No. 1 Sudhir. Sudhir's house was situated 200 feet away from the house of Jaypal. Appellant No. 2 Keda is the brother of appellant No. 1 - Sudhir. After Annapurna and Sunil went to the house of appellant No. 1 Sudhir, one lady came and informed Jaypal that there was some quarrel in between Sunil and Annapurna on one side and appellant Sudhir on the other side. Then Jaypal went and settled the quarrel and came home. By the time he reached home, it was 8.00 p.m. Thereafter, Jaypal, PW 3 Sunil and Rajpal (deceased) were discussing about the quarrel. At that time, Rajpal stated that appellant Sudhir had threatened him. (b) At about 9.00 p.m., both the appellants came to the house of Jaypal. Then Jaypal went and settled the quarrel and came home. By the time he reached home, it was 8.00 p.m. Thereafter, Jaypal, PW 3 Sunil and Rajpal (deceased) were discussing about the quarrel. At that time, Rajpal stated that appellant Sudhir had threatened him. (b) At about 9.00 p.m., both the appellants came to the house of Jaypal. Jaypal was residing in the said house along with his brother Sunil and Rajpal. Appellant Sudhir called Sunil and told him to come outside as he (Sudhir) wanted to apologize to him. Sunil then went out. As Sunil did not return back within a short time, PW 1 Jaypal had some doubt, hence, he and Rajpal went outside the house. After crossing a distance of about 40 to 50 feet, they saw that Sunil was being beaten by Sudhir. Rajpal and Jaypal went to the spot and rescued Sunil. Then appellant Keda caught hold of the hands of Rajpal from behind. Then appellant Sudhir took out a cutter and gave blow with it on the right side of the neck of Rajpal and thereafter, on the left side of the chest of Rajpal. Rajpal fell down. Then Sunil rushed forward. Appellant Sudhir gave blow with the cutter on the left cheek of Sunil. Rajpal was taken to the hospital where he was declared dead. Sunil was also taken to the hospital where his injury was stitched. Sunil was in the hospital for about 7 to 8 days. Meanwhile, PW 1 Jaypal lodged F.I.R. The said F.I.R. was lodged on 26.10.1999 at 23.50 hours. After lodging of the FIR, investigation commenced. The appellants were arrested. During the course of investigation, cutter was recovered at the instance of appellant Sudhir. So also blood stained clothes were recovered at the instance of the appellant Sudhir. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellants under Sections 302 r/w 34, 307 r/w 34, 506 r/w 34, 201 of IPC. Charge was also framed against appellant Sudhir under Section 135 of Bombay Police Act. Both the appellants pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. Charge was also framed against appellant Sudhir under Section 135 of Bombay Police Act. Both the appellants pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal preferred by the appellants against conviction and sentence. 4. We have heard the learned Advocate for the appellants and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that appellant Keda caught hold of Rajpal and appellant Sudhir assaulted Rajpal with a cutter on the neck and chest and in the course of this very same incident, the appellant Sudhir also assaulted PW 3 Sunil on the cheek with the cutter. 5. There are three eye witnesses in the present case i.e PW 1 Jaypal, PW 3 Sunil and PW 4 Rajendra. PW 3 Sunil is an injured eye witness. PW 1 Jaypal is the complainant in the present case. Jaypal, Sunil and deceased Rajpal were the brothers. They were all residing jointly at Malegaon. PW 1 Jaypal has stated that on 26.10.1999, appellant No. 1 Sudhir abused Jagdish - the brother-in-law of PW 1 Jaypal, hence, Jaypal's sister Annapurna and Jaypal's brother Sunil went to the house of appellant No. 1 Sudhir. Sudhir's house was situated 200 feet away from the house of Jaypal. Appellant No. 2 Keda is the brother of appellant No. 1 - Sudhir. After Annapurna and Sunil went to the house of appellant No. 1 Sudhir, one lady came and informed Jaypal that there was some quarrel in between Sunil and Annapurna on one side and appellant Sudhir on the other side. Then Jaypal went and settled the quarrel and came home. By the time, he reached home, it was 8.00 p.m. Thereafter, Jaypal, PW 3 Sunil and Rajpal (deceased) were discussing about the quarrel. At that time, Rajpal stated that appellant Sudhir had threatened him. PW 1 Jaypal has further stated that at about 9.00 p.m., both the appellants came to the house of Jaypal. By the time, he reached home, it was 8.00 p.m. Thereafter, Jaypal, PW 3 Sunil and Rajpal (deceased) were discussing about the quarrel. At that time, Rajpal stated that appellant Sudhir had threatened him. PW 1 Jaypal has further stated that at about 9.00 p.m., both the appellants came to the house of Jaypal. Jaypal was residing in the said house along with his brother Sunil and Rajpal. Appellant Sudhir called Sunil and told him to come outside as he (Sudhir) wanted to apologize to him. Sunil then went out. As Sunil did not return back within a short time, Jaypal had some doubt, hence, he and Rajpal went outside the house. After crossing a distance of about 40 to 50 feet, they saw that Sunil was being beaten by Sudhir. Rajpal and Jaypal went to the spot and rescued Sunil. Then appellant Keda caught hold of the hands of Rajpal from behind. Then appellant Sudhir took out a cutter and gave blow with it on the right side of the neck of Rajpal and thereafter, on the left side of the chest of Rajpal. Rajpal fell down. Then Sunil rushed forward. Appellant Sudhir gave blow with the cutter on the left cheek of Sunil. 6. PW 3 Sunil has stated that on 26.10.1999 at about 3.30 p.m., appellant Sudhir abused his brother-in-law Jagdish. Appellant Sudhir also abused Sunil. Sunil went to the house of his sister Annapurna and asked her whether there was quarrel between the appellant Sudhir and Annapurna's husband - Jagdish. Then Annapurna and Sunil went to the house of the appellant Sudhir. The appellant Keda is the younger brother of appellant Sudhir. Annapurna asked the appellant Sudhir why he abused her husband. Sudhir then also abused Annapurna. Sunil asked appellant Sudhir not to use filthy language. Then Sudhir gave first blow to Sunil. Sunil also gave one slap to Sudhir. Then Sudhir told Sunil that Sunil had come to his house and slapped him, hence, he would finish him (Sunil). Meanwhile, PW 1 Jaypal came there and settled the matter. PW 3 Sunil has further stated that at about 9.00 p.m. on that day, deceased Rajpal, PW 1 Jaypal and Sunil were in the house. Rajpal told them that before this incident, the appellant Sudhir had given him threats. At that time, both the appellants came to the house of Sunil. PW 3 Sunil has further stated that at about 9.00 p.m. on that day, deceased Rajpal, PW 1 Jaypal and Sunil were in the house. Rajpal told them that before this incident, the appellant Sudhir had given him threats. At that time, both the appellants came to the house of Sunil. Sudhir asked Sunil to come out as he wanted to apologize to Sunil, hence, Sunil came out of the house. Sudhir then put his hand around the neck of Sunil and walked upto a distance of about 50 feet from the house of Sunil. Then Sudhir started assaulting Sunil with fist blows and kick blows. Meanwhile, Rajpal and Jaypal (PW 1) came there. While Sudhir was assaulting Sunil, Rajpal came to catch hold of Sunil. At that time, appellant Keda caught hold of the hands of Rajpal from behind. Then appellant Sudhir gave blow with sharp edged weapon on the neck of Rajpal and also on the left side of the chest. Rajpal fell down. Sunil went forward to catch hold of Rajpal. At that time, Sudhir gave blow with that sharp edged weapon on the left cheek of Sunil. Sunil also fell down. Thereafter, both the appellants ran away from the spot. 7. The third eye witness is PW 4 Rajendra. He was residing in the same vicinity as that of Jaypal, Rajpal and Sunil. He also witnessed the incident and he has stated about the incident on similar lines as that of PW 1 Jaypal and PW 3 Sunil. 8. We carefully perused the evidence of all the three witnesses and we find the same to be believable and trustworthy. Moreover, PW 3 Sunil is an injured witness. We see no reason to disbelieve his version or that of any of the eye witnesses. 9. The evidence of all the eye witnesses is corroborated by the medical evidence. PW 10 Dr. Dange conducted the postmortem on the dead body of Rajpal. On external examination, Dr. Dange found the following injuries:- (1) Stab wound at right side of neck having size 2.5 inch x 1.5 inch deep cut right carotid artery; (2) Incise wound left side of chest 4.5 inch x 2 inch in size. According to Dr. Dange, both the injuries were antemortem. The first injury had caused cutting of right carotid artery. In the opinion of Dr. According to Dr. Dange, both the injuries were antemortem. The first injury had caused cutting of right carotid artery. In the opinion of Dr. Dange, the cause of death was due to cardio respiratory failure due to shock due to hypo volumia due to cutting of right carotid artery due to stab injury at right side of neck. 10. Dr. Dange also examined PW 3 Sunil. On examination, he found incise wound 5 cm x 1 cm x ½ inch deep involving the muscle layer of left cheek with sharp margins. The injury was fresh. At this stage, it may be stated that Dr. Dange examined Sunil on 26.10.1999 at 10.40 p.m. According to Dr. Dange, the injuries found on the person of Rajpal and Sunil were possible by sharp edged weapon like Article 1. 11. The evidence of three eye witnesses clearly shows that the appellant Sudhir assaulted Rajpal as well as Sunil with a cutter. However, as far as appellant Keda is concerned, looking to the peculiar facts of the present case, it cannot be said that he shared the common intention with appellant Sudhir to cause the death of Rajpal. His role is that he initially caught hold of Rajpal's hands when Rajpal went ahead to rescue Sunil who was being beaten up by Sudhir by fist blows and kick blows and it is thereafter that the appellant Sudhir assaulted Rajpal with a cutter on the neck and chest. In such case, looking to the peculiar facts of this case, we are of the opinion that appellant Keda did not share the common intention with appellant Sudhir to cause the death of Rajpal, hence, the conviction of appellant Keda in relation to causing the death of Rajpal cannot be sustained. 12. It is to be noted that as far as the act of the appellant Sudhir of causing injury to Sunil is concerned, he has been convicted under Section 307 of IPC. The injuries caused by the appellant Sudhir to Sunil is reflected in the earlier paragraph, however, in this connection we would like to advert to the cross-examination of PW 10 Dr. Dange who has stated that though the injury on the cheek was 1.2 inch deep, the injury was a simple injury. The injury was not dangerous to life. The injuries caused by the appellant Sudhir to Sunil is reflected in the earlier paragraph, however, in this connection we would like to advert to the cross-examination of PW 10 Dr. Dange who has stated that though the injury on the cheek was 1.2 inch deep, the injury was a simple injury. The injury was not dangerous to life. In this view of the matter, in our opinion, the conviction of appellant No. 1 Sudhir under Section 307 of IPC for causing injuries to Sunil cannot be sustained. However, as the injury was 5 cm x 1 cm x ½ inch deep and the fact that Sunil was in the hospital for 7 to 8 days, we are of the opinion that the appropriate conviction ought to be under Section 326 of IPC. Section 320 of IPC sets out what is grievous injury. Clause 6 of Section 320 of IPC states that permanent disfiguration of the head or face is a grievous injury. An injury of this nature on the face, which is 5 cm long and ½ inch deep would permanently disfigure the face, hence, this act of appellant Sudhir is clearly covered by Section 326 of IPC. 13. In view of the evidence of all the three eye witnesses one of whom is an injured witness, we do not find it necessary to advert to the other evidence. The evidence of these three witnesses coupled with the medical evidence is enough to sustain the conviction of appellant Sudhir under Section 302 and 326 of IPC. In the result, we pass the following order:- ORDER i. The conviction and sentence of appellant No. 1 - Sudhir Waman Pawar under Section 302 of IPC is maintained. ii. The conviction of appellant No. 1 - Sudhir Waman Pawar under Section 307 of IPC is set aside, instead, he is convicted under Section 326 of IPC and sentenced to rigorous imprisonment for five years and fine of Rs. 1500/-, in default, R.I. for one year. iii. Appellant No. 2 Keda Waman Pawar is acquitted of the offence punishable under Section 326 read with 34 of IPC. Appellant No. 2 Keda Waman Pawar is on bail. His bail bond shall stand cancelled. iv. The appeal is partly allowed in the above terms.