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2018 DIGILAW 894 (BOM)

Pankaj v. State of Maharashtra

2018-03-28

V.M.DESHPANDE

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JUDGMENT : 1. The present appeal is directed against the judgment and order of conviction passed by the learned 2nd Adhoc Additional Sessions Judge, Nagpur, dated 23.2.2004 in Sessions Trial No. 328/2002. By the said judgment and order, the Court below has convicted the appellants for the offence punishable under Section 307 of the Indian Penal Code and directed them to suffer rigorous imprisonment for five years and to pay fine of Rs.500/- and in default of payment of fine they are directed to suffer rigorous imprisonment for one month. The appellants are also convicted for the offence punishable under Section 341 of the Indian Penal Code and for that fine of Rs.500/- was imposed on them for such conviction and in default of payment of fine they are directed to undergo rigorous imprisonment for one month. Similarly, they are also convicted for the offence punishable under Section 352 of the Indian Penal Code and on that count also their sentence is only to pay fine of Rs.500/- for such conviction and in default of payment of fine they are directed to undergo rigorous imprisonment for one month. 2. I have heard Shri L. B. Khergade, the learned counsel for the appellants and Shri N. S. Rao, the learned Additional Public Prosecutor for the respondent/State. Also they took me, in detail, through the record and proceedings 3. The facts giving rise to the present appeal are as under : [A] On 27.2.2002, Devendra Patil (PW11) was Night Duty Officer of Police Station, Jaripatka, Nagpur. He received a telephonic message from Sushila Dhage (PW5) that her son Kapil Dhage (PW9) is assaulted. He, therefore, went to the spot, which is Panjabi Line, Nagpur with his staff. There he came to know that injured Kapil is admitted to the hospital. Therefore, he went to Mayo Hospital, Nagpur. He gave requisition (Exh.58) to the Medical Officer enquiring from him as to whether the injured is in a condition to give his statement. The Medical Officer asked him to wait for half an hour. After half an hour, he was told that the victim is in a condition to give his statement. Such an endorsement was given by the doctor on memo (Exh.58). Consequent to the same, he recorded the statement of injured Kapil (Exh.48). The Medical Officer asked him to wait for half an hour. After half an hour, he was told that the victim is in a condition to give his statement. Such an endorsement was given by the doctor on memo (Exh.58). Consequent to the same, he recorded the statement of injured Kapil (Exh.48). His statement (Exh.48) is treated as the first information report and Crime No. 82/2002 for the offences punishable under Sections 143, 147, 148, 149, 307, 341, 352 of the Indian Penal Code and under Section 37(1)(a) and 135 of the Bombay Police Act came to be registered. The printed first information report is at Exh.60. It is dated 28.2.2002. PSI Patil (PW-11) also gave requisition to the Special Executive Magistrate to record dying declaration of Kapil and accordingly, his statement was recorded (Exh.49). [B] During the course of investigation of the crime, PSI Patil went to the spot of the incident and in presence of panchas, the spot panchanama (Exh.20) was drawn. He also seized the clothes on the person of the victim at the time of incident from his mother under seizure memo (Exh.16). Search of the accused persons was made. They were arrested. He also made house search of accused no.3 – Vishal @ Chhotu Thakur and seized the hockey sticks and cricket stumps from the house under seizure memo (Exh.17). During their custodial presence, appellant no.2 Vijay gave his memorandum statement (Exh.35) and agreed to show the place where the weapon knife was concealed. After recording his memorandum statement in presence of panchas, police party reached to the spot where the weapon was concealed and it was recovered under recovery panchanama (Exh.36). One other accused Hemant also gave his disclosure statement and consequent to that, sticks were recovered. After completion of other usual investigation, the chargesheet was filed before the Court of law. [C] The learned Additional Sessions Judge, Nagpur framed the Charge against the appellants and six other accused persons. Appellant no.1 Pankaj was shown as accused no.2, whereas appellant no.2 Vijay was shown as accused no.5. They all were charged for the offences punishable under Sections 143, 147, 148, 149, 341, 352 and 307 of the Indian Penal Code and under Section 135 of the Bombay Police Act. In order to bring home the guilt of the accused persons, in all 11 witnesses were examined by the prosecution. They all were charged for the offences punishable under Sections 143, 147, 148, 149, 341, 352 and 307 of the Indian Penal Code and under Section 135 of the Bombay Police Act. In order to bring home the guilt of the accused persons, in all 11 witnesses were examined by the prosecution. The learned Judge of the Court below, except the present appellants, acquitted the remaining six accused persons from all the offences. The appellants stand convicted and sentenced as observed in the opening paragraph of the judgment. Hence, this appeal. 4. Against the acquittal of remaining six accused persons, no appeal is preferred by the State. 5. It is clear from the evidence of PW11 Devendra Patil, the Investigating Officer and PW5 Smt. Sushila Dhage that she made a phone call to Police Station, Jaripatka, Nagpur giving information about assault on Kapil. However, what was her telephonic information is not brought on record by the prosecution. 6. After receipt of telephonic information, the Investigating Officer swung into action and reached to the spot of the incident. There, he gathered information that the injured is already shifted to Mayo Hospital, Nagpur. Therefore, he went to the said hospital. There, he recorded his statement, which is treated as the first information report. Perusal of Exh.48, the statement of injured, would show that on the day when his statement was recorded i.e. 27.2.2002, the injured had been to the house of his one relative and after having dinner at about 9.15 in the night when he was proceeding towards house, accused Vishal, Pankaj (appellant no.1), Chhotu, Sanju Sharma and Munna (appellant no.2) and others, who were unknown to him, came towards him running and appellant no.2 Munna gave knife blow on his right thigh, whereas appellant no.1 Pankaj gave hockey stick blow on his head. Resultantly, he fell down. That time his mother Smt. Sushila and neighbour one Ramrao came there. 7. Though, the prosecution has examined PW3 Lava @ Ram Gotiwada as eyewitness, he turned hostile and he has not supported the prosecution case. PW4 Roshan Tabhane, though is not declared hostile, if his evidence is perused, he state nothing about the actual assault. He only states that he only noticed injured Kapil lying in an injured condition. 7. Though, the prosecution has examined PW3 Lava @ Ram Gotiwada as eyewitness, he turned hostile and he has not supported the prosecution case. PW4 Roshan Tabhane, though is not declared hostile, if his evidence is perused, he state nothing about the actual assault. He only states that he only noticed injured Kapil lying in an injured condition. PW1 Pitambar and PW2 Sanjay are examined as panch witnesses on Exhs.16 and 17, namely seizure of the clothes of the injured and house search panchanama of accused Vishal @ Chhotu. Both of them turned hostile. PW7 Sanjay Khare is examined by the prosecution regarding the memorandum statement of appellant no.2 – Vijay (Exh.35) and recovery panchanama of weapon knife (Exh.36). He also did not support the prosecution. PW8 is Suresh Hinge, the panch who proved spot panchanama (Exh.20) and the seizure of the clothes of injured (Exh.16). Another witness is PW10 Dharampal Gajbhiye. His evidence is not required to be considered at all for decision of the present appeal. Not only that, he was declared hostile, but he was examined in respect of memorandum statement and consequent recovery from the acquitted accused Hemant. Thus, there remains only three prosecution witnesses, whose evidence is to be scrutinized and requires evaluation to record the finding as to whether conviction of the appellants for the offence punishable under Section 307 and for other offences is justified. 8. PW9 is Kapil Dhage, the injured. The contents of first information report (Exh.48) are already noted in the preceding paragraphs. His substantive evidence would show that when he was returning in the night on 27.2.2002 from the house of Raju Gajbhiye, appellant Pankaj, appellant Munna and acquitted accused Chhotu chased him. Thereafter, appellant Pankaj gave hockey stick blow on his head. When he started running towards his house, one blow of baseball stump was given on his head. Appellant Munna @ Vijay gave knife blow, due to which he received injury on his right thigh, which was bleeding injury. In the meantime, his mother and sister came on the spot and accused persons ran away. He was brought to the home by his mother. Thereafter, his mother gave telephonic information to police by attending STD booth. Appellant Munna @ Vijay gave knife blow, due to which he received injury on his right thigh, which was bleeding injury. In the meantime, his mother and sister came on the spot and accused persons ran away. He was brought to the home by his mother. Thereafter, his mother gave telephonic information to police by attending STD booth. Insofar as chasing by appellant Pankaj, appellant Munna and acquitted accused Chhotu is concerned, the said fact was deposed by PW9 Kapil for the first time in the Court and it was not stated by him when his statement was recorded by the police. 9. PW5 Sushila Dhage, the mother of the injured states from witness box that on 26.2.2002, Raju Gajbhiye was beaten by Santosh Thakur, Vishal Thakur, Robert and their companions and this incident was stated by injured Kapil to the maternal aunt of Raju Gajbhiye. Her evidence further reveals that when she was present in the house, Roshan (PW4) came and he informed that her son Bhadya @ Kapil is assaulted by Thakur party. Therefore, she and her daughter went towards the spot of incident and noticed that all the accused persons were beating Kapil by means of hockey stick and cricket stump. She claims that she fell on the body of her son. She states that appellant Pankaj gave stick blow on the head of Kapil and appellant Munna gave knife blow on the thigh. Thereafter, she went to telephone booth and informed the incident. From the evidence of PW5 Sushila, it is clear that she is exaggerating the incident. Though, she claims that when she reached to the spot of incident, on noticing the assault on her son, she fell on his body. This material fact is not at all corroborated by injured Kapil. Further though, she claims that in the assault their clothes were smeared with blood, her clothes were not seized by the police. She states in her cross-examination that police refused to seize the clothes. Had really there were blood stains, there was no reason for the Investigating Officer not to seize the clothes. 10. However, with regard to the assault made on injured Kapil by appellant Pankaj by stick and appellant Vijay by means of knife, the evidence of injured Kapil remained intact. In fact there is no serious challenge to this aspect during the searching cross-examination of injured Kapil. 10. However, with regard to the assault made on injured Kapil by appellant Pankaj by stick and appellant Vijay by means of knife, the evidence of injured Kapil remained intact. In fact there is no serious challenge to this aspect during the searching cross-examination of injured Kapil. Further, the said fact also finds corroboration in the evidence of PW5 Smt. Sushila. Therefore, there is no hesitation in my mind to record a finding that the appellants are authors of the injuries on the person of PW9 Kapil Dhage. 11. The next important question, therefore, the Court is required to answer is as to for what offence, these appellant should be convicted. PW6 is Dr. Ramesh Wasnik. On 08.3.2002, he was serving in Indira Gandhi Medical College, Nagpur (Mayo Hospital, Nagpur). He prepared injury certificate on the basis of bed head ticket. From the evidence of PW6 Dr. Wasnik, it is clear that he did not see the patient when he was brought to the hospital, neither he was his treating doctor. PW6 Dr. Wasnik, has prepared the injury report (Exh.32) on the basis of bed head ticket of injured Kapil. As per the evidence of Dr. Wasnik, bed head ticket of Kapil was showing following injuries : 1. Lacerated wound situated over right parietal region of size 8 cm x 2 cms. Injury is simple which is caused by hard and blunt object or surface. 2. Stab wound present over right thigh lateral aspect of size 3 x 1 cms x muscle deep. Injury is simple and it can be caused by sharp pointed weapon. In his examination-in-chief itself, he expressed opinion that he cannot give the exact opinion as to whether the injuries were sufficient to cause death. He also admitted that he had no opportunity to see City Scan report so also the Xray and report of Radiologist, nor these reports are filed on record by the prosecution. 12. The learned Judge of the Court below, while recording the conviction for the offence under Section 307 of the Indian Penal Code, in paragraph 13 of the impugned judgment, observed that the injuries were grievous in nature. 12. The learned Judge of the Court below, while recording the conviction for the offence under Section 307 of the Indian Penal Code, in paragraph 13 of the impugned judgment, observed that the injuries were grievous in nature. In my view, this particular observation of the learned Judge of the Court below is contrary to the record since the injury nos.1 and 2, as mentioned in the bed head ticket of the injured, itself were showing that the injuries were simple in nature. Further, the learned Judge of the Court below has observed that evidence of PW9 Kapil shows that the accused persons chased him and they were prepared to make an assault endangering to his life. Chasing on the part of the appellants was stated, for the first time, by Kapil before the Court. Had really there was an intention on the part of the appellants to commit murder of the injured Kapil, appellant Munna would not have given knife blow on the nonvital part of the body of the victim. Further, though appellant Pankaj has given stick blow on the head, the injury was simple. Not only that, had really it was an intention on the pert of appellant Pankaj to commit murder of Kapil, he would have repeated the assault. In view of only one injury i.e. on head, shows that appellant Pankaj did not repeat his act of making assault, which in my view, is sufficient to record a finding that there was no intention on the part of the appellants to cause death. Therefore, the conviction, in my view, for the offence under Section 307 of the Indian Penal Code is untenable. 13. It is, however, proved that injured Kapil suffered injuries, though simple, but were caused by the appellants by means of stick and knife, which are dangerous weapons. Therefore, in my view, in the present case, against the appellants, 5 offence punishable under Section 324 of the Indian Penal Code is made out. 14. The record shows that appellant no.1 – Pankaj was arrested on 28.2.2002 and he was released on bail by the learned Court below on 28.5.2002, whereas appellant no.2 – Vijay @ Munna was arrested on 28.2.2002 and he was released on 08.5.2002. The appellants were convicted on 23.2.2004 and they were taken into custody and they were released on bail by this Court in the present appeal on 25.3.2004. The appellants were convicted on 23.2.2004 and they were taken into custody and they were released on bail by this Court in the present appeal on 25.3.2004. thus, for a period of four months and three months the appellants were in jail, respectively. 15. The incident is of 2002. No untoward incident has occurred after the said incident in between the parties. Therefore, in my view, their jail sentence for the offence punishable under Section 324 of the Indian Penal Code, shall be the period which they have already undergone in jail. Consequently, I pass the following order : ORDER 1. The criminal appeal is partly allowed. 2. The judgment and order of conviction, dated 23.2.2004 passed by the learned 2nd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No. 328/2002, convicting the appellants for the offence punishable under Section 307 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years, is hereby quashed and set aside. 3. Appellant No.1 – Pankaj Soman Gaikwad and appellant no.2 – Vijay @ Munna Amarsingh Thakur, instead, are convicted for the offences punishable under Section 324 of the Indian Penal Code and for that, the sentence shall be the period which they have already undergone in jail. 4. Their conviction and sentence insofar as offences under Sections 341 and 352 are concerned, is maintained. 5. The appeal is partly allowed and disposed of.