Criminal Appeal No. 42 of 2018 · Bombaybench High Court
Case Details
2024:BHC-AUG:25404-DB APEAL-42-18+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 42 OF 2018Satyam Venkatrao HatteAge: 25 years, Occu.: Auto Driver,R/o Dhanora, Tq. Kandhar, Dist. NandedAt present MIDC, Nanded..APPELLANTVERSUSState of Maharashtra..RESPONDENTAND CRIMINAL APPEAL NO. 201 OF 2018AND CRIMINAL APPLICATION NO. 527 OF 2018Sunil @ Sunya Gangadhar KokateAge: 25 years, Occu.: Pvt. Service,R/o Patoda, Tq. Naigaon, Dist. NandedAt present MIDC, Nanded..APPELLANTVERSUSState of Maharashtra..RESPONDENT....Mr. N.S. Ghanekar, Advocate for appellantsMr. S.J. Salgare, A.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON: 13th SEPTEMBER, 2024PRONOUNCED ON : 11th OCTOBER, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Both these appeals take exception to a judgment and order ofconviction and consequential sentence dated 30th November, 2017 passedby Additional Sessions Judge, Nanded (‘trial Court’) in Sessions Case, No.44 of 2014. Alongwith the present appellants, three more persons were put1 / 24
Facts
APEAL-42-18+1.odton trial before the trial Court for the various offences including main offenceof committing murder of one Chingya in furtherance of their commonintention of their unlawful assembly, the trial Court acquitted original accusednos. 2, 3 and 5 of all the offences they were charged with. Neither the Statenor the victim has preferred appeal against the acquittal. As such, case ofthe prosecution that offence was committed by five persons in furtherance oftheir common intention, stood not proved and attained finality as well.2.Original Accused No.1 – Sunil Kokate (appellant in Appeal No.201 of 2018) and Accused No.4 – Satyam Hatte (appellant in Appeal No. 42of 2018) have been convicted for the offence punishable under Section 302read with Section 34 of the Indian Penal Code (‘I.P.C.’), and therefore,sentenced to suffer imprisonment for life and fine of Rs.2,000/- each. Indefault of payment of fine, they have been directed to undergo rigorousimprisonment for six months.3.The facts of the prosecution case, disclosed from the F.I.R.(Exh.54), are as follows :-PW 1 – Yadav was a close friend of Chingya @ MohammadAavesh Mohammad Asif. On 27th December, 2013 by 12:00 noon, Chingyamet PW 1 – Yadav. He took Rs.50/- from Chingya and both of them went toPankaj Nagar, Dhanegaon to find whether income certificate of PW 1 –Yadav was ready. After having verified the same, both of them went towardsChandasing Corner. On the way, PW 1 – Yadav received a phone call ofone Raju Jadhav. He called him to Padmavati Beer Bar. Both of them,2 / 24 APEAL-42-18+1.odttherefore, went there. Three others were in the company of Raju Jadhav. Allof them were consuming liquor. By little past 03:30 p.m. the other three, whowere in the company of Raju Jadhav, left the beer bar. Chingya, Yadav andRaju Jadhav remained in the beer bar until 07:00 p.m. By little past 07:00 inthe evening the trio left the beer bar and went to a tea hotel adjoiningSantosh Bar, near bus stand. In the meanwhile, Chingya left them to answernature’s call (urinating/peeing). He went towards the wall of Santosh bartowards bus stand. After a while, PW 1 – Yadav heard commotion from thatside. He heard, “This is Chingya. Beat him up” (gk fpaX;k vkgs- ;kyk ekjk). Heand Raju, therefore, rushed towards Chingya. Chingya was running to savehimself. He entered a bylane. Both the appellants alongwith three others(since acquitted) were chasing him. Appellant – Satyam intercepted PW 1 –Yadav. PW 1 – Yadav saw Chingya lying on the road. Appellant – SunilKokate was sitting on his person and assaulted on Chingya’s chest. Satyamthen released PW 1 – Yadav and sat on the person of Chingya. All of themthen fled towards CIDCO. PW 1 – Yadav went close to Chingya. Took hishead on his lap. Covered his wound with a handkerchief and rushed him toGovernment Hospital, Nanded. The medical officer there declared Chingyadead.4.PW 1 – Yadav, therefore, immediately lodged the F.I.R. (Exh.54)with Nanded Rural Police Station. A crime vide C.R. No. 393 of 2013 wasregistered. Investigation commenced. Crime scene panchanama (Exh.59)was drawn. Four of the accused, including the appellants before us, were3 / 24
Legal Reasoning
APEAL-42-18+1.odtthe deceased. Most of them were in the nature of abrasion and simple innature. PW 1 – Yadav’s evidence did not disclose that appellant – Satyamsat on the person of the deceased. He did not attribute Satyam with anyassault to the deceased.36.It is PW 6 – Vikas, who claimed to have been in that area torecharge his cell phone. He could not state in which shop he recharged hiscell phone. In our view, he happened to be a chance witness. His evidenceindicates that he too went to rescue Chingya. However, Sunil Suryawanshi(acquitted accused) prevented him by showing him a dagger. He, therefore,went towards Chingya from the opposite side i.e. from the front side of thebus stand and saw appellant – Satyam to have sat on the person of thedeceased and hit on his head with a brick. 37.PW 6 – Vikas then claimed to have had accompanied thedeceased to the hospital. Police were there. Still he did not disclose theincident. His statement was recorded on the following day. He happened tobe a chance witness. We, therefore, do not propose to rely on his evidence.The fact, however remains that PW 1 – Yadav is an eye witness to theincident. He lodged the F.I.R. within one and half hour of the incident. Hisevidence before the Court gets corroborated by the F.I.R. (Exh.54). The C.A.report (Exh.114) indicates his clothes were stained with blood of thedeceased. The blood group of the deceased was “A”. It is reiterated that afatal blow was given by the appellant – Sunil Kokate with a knife on the vitalpart of the deceased. The same indicates his intention to commit murder of20 / 24 APEAL-42-18+1.odtChingya. PW 6 – Vikas did not know any of the appellants or the acquittedaccused by name. They were shown to him at the police station. However,no T.I. Parade was held. Be that as it may.38.True, learned counsel for the appellants would submit that theappellants and those acquitted had injuries on their person. The prosecutionought to have explained their injuries. He adverted our attention to theevidence of PW 10 – Mundhe, Investigating Officer, who testified theaccused to have suffered those injuries in the quarrel. He, however nottestified in which quarrel they suffered those injuries. True, four of the fiveaccused were drunk when they were overpowered within half an hour of theincident from the vicinity of the crime scene. None of the appellants nor anyof the acquitted accused had come with a defence before the trial Court tohave had suffered the injuries as a result of a scuffle between them on theone hand and the deceased on the other. On the contrary, their stand wasvague. First they came with a case that the deceased was being assaultedby others. They intervened and thereby suffered injuries. The other defencewas that they had quarrel with some other persons and they assaulted them.Therefore, they had been to the police station to lodge the report.39.The injury certificates of the appellants and those acquitted are onrecord. The same indicates them to have suffered injuries simple in nature.True, one of the appellants i.e. Sunil Kokate had suffered injury to his back.It is reiterated that when the appellants and the acquitted accusedthemselves had come with a case to have suffered injuries at the hands of21 / 24 APEAL-42-18+1.odtsomeone else, learned counsel representing them could not be heard to saythe prosecution to have been under obligation to explain the injuries on theirperson. Moreover, the injuries were simple in nature.40.Based on the evidence of PW 1 – Yadav and the other evidenceon record, the trial Court has rightly convicted appellant – Sunil Kokate forcommitting murder of Chingya. The question is whether conviction ofappellant – Satyam for the very offence under Section 34 of the I.P.C. isjustified. For better appreciation, Section 34 of the I.P.C. is reproducedbelow :-“34. Acts done by several persons in furtherance of commonintention. - When a criminal act is done by several persons infurtherance of the common intention of all, each of such persons isliable for that act in the same manner as if it were done by himalone.”41.Admittedly, it was not the case of prosecution that the appellantsand the acquitted accused were brandishing deadly weapons. There is noevidence to indicate that appellant – Satyam knew that in the assault,appellant – Sunil Kokate was going to stab the deceased with the knife.There is no evidence to indicate appellant - Sunil Kokate to have been armedwith a knife and the same was known to appellant – Satyam. While appellant- Sunil Kokate had sat on the person of the deceased and gave a knife blow,that time appellant – Satyam was far away from both of them. He hadcaught hold of PW 1 – Yadav. The same at the most indicates that appellant– Satyam had shared intention with appellant – Sunil Kokate to assault thedeceased i.e. to voluntarily cause him hurt. At the cost of repetition it is22 / 24 APEAL-42-18+1.odtstated that the prosecution case before the trial Court was altogetherdifferent. It was an offence said to have been committed in furtherance ofcommon object of the unlawful assembly. Had appellant – Satyam sat on theperson of the deceased and assaulted him with a brick, blood of thedeceased would have been on the clothes of Satyam. The C.A. report(Exh.114), however indicates that the blood stains on the clothes of Satyamwere not that of the groups of the deceased. Blood group of the deceasedwas ‘A’. Articles 11 to 13 were the clothes of Satyam. His blood group was‘B’. No blood of deceased was found on the clothes of Satyam. Article 25 –knife bears blood of group ‘A’. According to the prosecution, the appellantswere taken into custody within half an hour of the incident. Clothes on theirperson were seized immediately. Non-finding of stains of blood of thedeceased on the clothes of appellant – Satyam indicates he even did notcome in the contact with the deceased – Chingya. At the most he could besaid to have shared common intention with appellant – Sunil Kokate tovoluntarily cause hurt to the deceased, an offence punishable under Section323 read with Section 34 of the I.P.C. We have reason to say so since theevidence of PW 1 – Yadav is to the effect that he heard shouts of theappellants and their companions, “gk fpaX;k vkgs- ;kyk ekjk”. As such, there isevidence to indicate appellant – Satyam to have had no intention to commitmurder of Chingya. His conviction for the offence under Section 302 with theaid of Section 34 of the I.P.C. is, therefore, liable to be set aside replacingthe same with the offence punishable under Section 323 of the I.P.C. Hewas already behind bars for over 275 days.23 / 24
Arguments
APEAL-42-18+1.odtarrested within half an hour from the vicinity of the crime scene. The otherone was arrested on the following day. Inquest and autopsy were conductedon the mortal remains of deceased – Chingya. Clothes on his person andthat of all the accused were seized. Appellant – Satyam made a disclosurestatement (Exh.78) pursuant to which a knife came to be seized from a drywell, under panchanama (Exh.79) drawn in the presence of panchas. All theseized articles were submitted to R.F.S.L., Aurangabad for chemical analysisand report. Statements of the persons acquainted with the facts andcircumstances of the case were recorded. Upon completion of investigation,charge-sheet was filed against five accused.5.The trial Court framed charge (Exh.26). The appellants pleadednot guilty. Their defence was of false implication.6.On appreciation of the evidence of ten witnesses besidesdocumentary evidence adduced in the case, the trial Court acquitted thethree accused and convicted the appellants as stated above.7.Learned counsel for the appellants would submit that theprosecution case before the trial Court was of the offence to have beencommitted in furtherance of exercise of common object of unlawful assembly.The trial Court acquitted three of five persons. The State did not preferappeal against acquittal. The case was in fact based on sole eye witnessaccount of PW 1 – Yadav. The another so called eye witness happened tobe a chance witness. On arrest of the appellants and the acquitted persons,4 / 24 APEAL-42-18+1.odtthe police officer had noticed injuries on their person. He even admitted theyto have suffered in the very quarrel. The prosecution did not explain as tohow the appellants and other three suffered injuries. As such, theprosecution has suppressed the genesis of the case. The crime scenepanchanama (Exh.59) indicates that there were broken beer bottles. It mightbe a case of clash between two groups. The deceased had a criminalhistory. Number of crimes were registered against him. No overt act hasbeen attributed to the appellant – Satyam. According to learned counsel, itmay at the most be a case falling under any of the exception to Section 300of the I.P.C. so far as regards the one who assaulted the deceased with theknife. There is no evidence to indicate that appellant - Satyam was not in theknow that appellant – Sunil Kokate was armed with a knife and he was goingto assault Chingya on his vital part. Learned counsel meant to say thatappellant - Satyam, therefore, could not be attributed to have sharedcommon intention to commit an offence of murder. He ultimately urged forallowing the appeals.8.Learned A.P.P. would, on the other hand, submit that the case isbased on eye witness account. The deceased suffered not less than seveninjuries. PW 1 – Yadav was in the company of the deceased since 12:00noon until post incident as well. He was an eye witness. There is anothereye witness as well. Due to passage of time, a minor inconsistency betweenthe evidence of all the eye witnesses was bound to occur. Learned A.P.P.,therefore, relied on a judgment of the Apex Court in case of Shahaja alias5 / 24 APEAL-42-18+1.odtShahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, AIR Online2022 SC 1011 and particularly drew our attention to paragraph no.27 andsub-clauses thereof viz. (I) to (XIII). He also adverted our attention toparagraph nos. 106 to 115 of the Apex Court judgment in case ofRamanand alias Nandlal Bharti Vs. State of Uttar Pradesh, AIR Online2022 SC 655.9.On the question of injuries on the persons of the appellants andacquitted accused as well, he would submit that the prosecution was underobligation to prove serious injuries on their person. He meant to say that theprosecution was under the obligation to explain superficial and minor injuries.He meant to say that a motive behind the crime has been proved by theevidence of PW 8 - Pravin. It was a brutal murder.10.According to learned A.P.P., since the case was based on theevidence of an eye witness, no fault could be found with the order ofconviction and sentence as well passed by the trial Court. He, therefore,urged for dismissal of the appeals.11.Considered the submissions advanced. Perused the evidence onrecord and the judgment impugned herein as well. Let us now advert theretoand appreciate the same.12.PW 9 – Dr. Santosh was serving as Assistant Professor with Dr.Shankarrao Chavan Government Medical College, Nanded at the relevanttime. He was on duty on 28th December, 2013. Dr. R.D. Awasare and he6 / 24 APEAL-42-18+1.odtconducted autopsy on the dead body of Chingya. His evidence indicates tohave noticed following injuries on the person of the deceased :- “1.Abrasion present over right side of face 2 cm lateral tolateral canthus of eye of size 5 cm. X 2.5 cm. reddish.2.Lacerated wound present over right temporal regionsituated 5 cm. above right pinna, of size 1.5 cm. X 0.5 cm. Xtissue deep, obliqually placed, reddish.3.Abrasion present over front of left shoulder of size 3 cm. X2 cm., reddish.4.Abrasion present over superior aspect of left shoulder ofsize 3 cm. X 2 cm., reddish.5.Abrasion present over posterior aspect of left shouldersituated 5 cm. from injury No.4 of size 4 cm. X 2 cm., reddish.6.Contusion present over back scapular region as rail-trackcontusion oblique, of size 5 reddish in colour. cm. X 2 cm. withcentral pale area,7.Stab wound present over front of abdomen on epigastricregion in mid line obliqually placed, lower right side angle acute,of size 4.2 cm X 2 cm. X cavity deep, on approximation 4.5 cm. inlength, situated 2 cm. below xiphoid process and 14 cm. aboveumbilicus, margins clean cut. Stab is directed upward, backwardand slightly to left piercing through skin, subcutaneous tissue,rectus sheath and muscles of abdomen in mid line, peritoneum,left dome of diaphragm, inferior surface of pericardium, inferiorsurface of right ventricle. Margins clean cut, reddish.8.Abrasion present over dorsal aspect of right forearm 11 cm.above wrist, of size 3 X 1 cm, reddish.9.Incision present over right middle finger, dorsal aspect ofsize 0.5 cm. X 0.1 cm X subcutaneous tissue deep, reddish.10.Incision present over antero lateral aspect of left thigh,obliqually placed, situated 23 cm. above knee, 23 cm. fromanterior superior iliac spine, of size 4.5 cm. X 2 cm. Xsubcutaneous tissue deep, reddish.”13.In his opinion, the deceased died due to stab injury to heart (InjuryNo.7). The postmortem report finds place at Exhibits 91 and 92. Thewitness then tendered in evidence final cause of death certificate (Exh.95)7 / 24 APEAL-42-18+1.odtreiterating therein that the deceased died of stab injury to his heart. In hisopinion, injury nos. 1 to 5, 8 and under scalp injuries were possible by hardand blunt object like brick, while injury no.7, due to which Chingya breath hislast, was caused by sharp and pointed object, like knife. According to him,injury nos. 9 and 10 were possible by sharp cutting object. In his opinion,injury no.7 was sufficient to cause death in the ordinary course of nature. Inview of PM report, we do not propose to refer to contents of inquestpanchanama (Exh.61) in detail.14.According to PW 9 – Dr. Santosh, injury nos.1 and 2 were only onvital part of the body, while injury nos. 3 to 5 were not on the vital part.According to him, abrasions were simple in nature. There were no bloodclots under the scalp. There was no injury to ribs and sternum. He admittedthe suggestion that if a person is sitting on epigastric region of abdomen,then injury no.7 was not possible to be caused.15.This suggestion appears to have been given to contradict theevidence of PW 1 – Yadav, who claimed to have seen appellant - SunilKokate to have sat on the person of Chingya and then assaulted on his chestwith a sharp object.16.The fact remains that evidence of PW 9 – Dr. Santoshundoubtedly indicates Chingya met with homicidal death. The question iswhether the appellants are responsible for his murder. 8 / 24 APEAL-42-18+1.odt17.PW 1 – Yadav’s evidence in examination-in-chief is almostconsistent with his F.I.R. (Exh.54), meaning thereby his evidence before theCourt has been corroborated by his previous statement in the nature of F.I.R.(Exh.54). A bit repetition is bound to occur while referring to the evidence onrecord.18.It is in the evidence of PW 1 – Yadav that Chingya met him in hissociety on 27th December, 2013. He borrowed Rs.50/- from him. Then bothof them went to Pankaj Nagar, Dhanegaon in Setu Kendra and then went toChandasing Corner. He received a phone call of his friend Raju Jadhav.Both of them then went to Padmavati Beer Bar. It was 03:30 p.m. RajuJadhav was accompanied by three persons viz. Akash Sonkamble, NitinPawale and Gajanan Gajbhare. After a while, those three left the bar. Thetrio remained in the bar till 03:00 p.m. Then they went to a hotel for tea.While he and Raju were taking tea, Chingya left to answer nature’s call(urinating/peeing). After a little while he heard, “This is Chingya. Catch him.Beat him.” Therefore, he alongwith Raju rushed towards the site from whichthey heard the commotion and aforesaid words. While they were runningtowards that place, both of them got separated from each other. He (PW 1 –Yadav) saw Chingya running from Santosh Bar towards bus stand. Theappellants and those three acquitted were chasing him. While running away,Chingya dashed against the fencing between the bus stand and hotel. Hefell down. As he was (PW 1 – Yadav) approaching Chingya, appellant –Satyam caught him. Appellant – Sunil Kokate sat on the abdomen of9 / 24 APEAL-42-18+1.odtChingya and inflicted a blow on the chest of Chingya with a sharp weapon.According to him, PW 6 - Vikas came to rescue him. Sunil Suryawanshi(since acquitted) shown Vikas a dagger and prevented him from rescuingChingya. Appellant – Sunil Kokate then got up from the person of Chingya.Appellant – Satyam then released him (PW 1 – Yadav) and sat on theabdomen of Chingya. The other three (since acquitted) rushed to beat him(PW 1 – Yadav). PW 6 - Vikas saved him. All of them then ran towardsCIDCO. According to him, Sunil Suryawanshi (since acquitted) wasshouting, “ekjk lkY;kyk- [kqilk- eh c?kwu ?ksrks-” (“Kill him. Stab. I will see”).19.It is further in his evidence that Chingya walked about ten stepswith the support of the compound wall of bus stand. He then fell down. PW1 – Yadav took Chingya on his lap. Covered his wound with thehandkerchief. Vikas, Fazil Bhai, Deepak and he took Chingya toGovernment Hospital, Nanded in an auto-rickshaw. Chingya sufferedmultiple injuries. Doctor examined and declared him dead. He then lodgedthe report of the incident.20.He was subjected to a searching cross-examination. It wassuggested to him that he went to Chingya for borrowing money on 27thDecember, 2013. This suggestion indicates that both i.e. PW 1 – Yadav andChingya were together on the given day. His evidence suggests that therewere two beer bars viz. Padmavati Beer Bar and Santosh Beer Bar. Both thebars were on the opposite side of each other. Adjacent to Santosh Beer Bar,10 / 24 APEAL-42-18+1.odtthere is bus stand. There was a tea hotel. There was one isolated placewhereat people use to go to pee.It has also been brought on record during his cross-examinationthat on that day he had consumed liquor. His statement was recorded by theMagistrate. He did not state the Magistrate to have consumed one quarter ofMB liquor. It pertains to his statement under Section 114 of Cr.P.C.According to him, after 07:30 p.m. he did not see Raju Jadhav. He did notknow that the appellants and others in their company were neither inPadmavati Bar nor in Santosh Bar. He admitted that the appellants andthree others were not at Hari Om Tea House. His evidence further indicatesthat police seized his clothes and handkerchief as well. His clothes werestained with blood of Chingya. By 08:45 p.m. police had called him to policestation to identify the accused persons. No documentation took place in thatregard. He was confronted with certain portion in the F.I.R. It wassuggested to him that he did not state appellant - Sunil Kokate had sat on theperson of Chingya and assaulted. Close perusal of the F.I.R. indicates thatsame finds place in the F.I.R. The trial Court ought not to have allowed suchquestions to be put or at least brought on record since it was not an omissionat all. Learned A.P.P. in-charge of the case ought to have raised objectionwhile such question was put. Be that as it may.21.PW 1 – Yadav claimed ignorance about appellant – Sunil Kokatehad sustained incised wound on his back on the given day. In short, he11 / 24 APEAL-42-18+1.odtclaimed ignorance of the appellants and others to have suffered injuries onthe same day. It was suggested to him that those five had been to the policestation to lodge the report of having been beaten by people. He denied thatoriginal accused nos.1 to 3 including one of the appellants herein hadrescued Chingya from those persons. His evidence further disclosed thatbrother and brother-in-law of Chingya had accompanied him to the Court,while his evidence was to be recorded. The entire tenor of the cross-examination indicates the appellants and those three acquitted disowned tohave assaulted Chingya on the given day. According to them, Chingya wasassaulted by some others and they had intervened to save him. The same,therefore, be turned out to be false defence.22.PW 2 – Sk. Ismail is a witness to the crime scene panchanama(Exh.59). His evidence indicates that broken pieces of Kingfisher beerbottles, one goggle and one shirt stained with blood and soil were takencharge of / seized by the police in his presence. A panchanama to that effectwas drawn vide Exhibit 59. He identified those articles when shown to himduring recording of his evidence. While those articles were shown to him,they were in the container / packet bearing a wax seal.23.Perusal of the crime scene panchanama (Exh.59) indicates it wasa place in a lane in between Hari Om Hotel and ST Bus pick-up shed. Abamboo sheet was found broken. Blood stains were noticed at variousplaces in the lane. A black goggle, broken pieces of beer bottle were alsolying at the place.12 / 24 APEAL-42-18+1.odt24.PW 3 - Rais Khan was a witness to inquest panchanama(Exh.61), while PW 4 – Sayyed Khurshid was a witness to the seizure ofblood stained clothes of the appellants and three others. Thosepanchanamas find place at Exhibits 65 to 68 and 69 to 73. Exhibit 74 is apanchanama pertaining to seizure of clothes of acquitted accused – SunilSuryanwanshi. According to this witness, the clothes were seized in hisperson. Those were shown to him during recording of his evidence and heidentified the same.25.PW 5 – Sk. Samsher is a witness to a disclosure statement madeby appellant – Sunil Kokate. It is in his evidence that appellant – SunilKokate made a statement that he will produce the knife. Here, learnedcounsel for the appellants would submit that this witness did not state theappellant to have stated a place wherefrom he would produce the knife.Memorandum of statement of appellant - Sunil Kokate is at Exhibit 78. Hethen led the police officials and the panchas to CIDCO via Dhawale corner.Then he took them to a place nearby Durga Devi Temple. The jeep washalted at the instance of appellant – Sunil Kokate. He then led them to a wellnearby the temple. It was a dry well, containing debris. Appellant – SunilKokate took out a knife from the well. It was seized under panchanama(Exh.79).During cross-examination of this witness it has been brought onrecord that appellant – Sunil Kokate had suffered injury to his forehead.Bandage was applied to the forehead injury. He was handcuffed.13 / 24 APEAL-42-18+1.odt26.PW 6 – Vikas was another eye witness. His evidence indicatesthat Chingya was residing in his locality, and therefore, he had known him.According to him, by 07:30 p.m. on 27th December, 2013 he was proceedingtowards Chandasingh corner to recharge his cell phone. According to him, inthe lane between Santosh Bar and bus stand accused persons (five innumber) were beating up Chingya. He, therefore, went there. When he triedto rescue Chingya, Sunil Suryawanshi (since acquitted) threatened him witha dagger. One Ansar Bhai was also there. He was also not allowed to saveChingya. He, therefore, went towards Chingya from the front side of the busstand. He saw Chingya was lying on a bamboo sheet. He saw appellant –Satyam hit on Chingya’s head with a brick. When he attempted to catchSatyam, appellant – Sunil Kokate caught him from behind. That time PW 1 –Yadav came there. Appellant – Sunil Kokate then left him and sat on theperson of Chingya and stabbed on his chest. While appellant – Satyamcaught hold of PW 1 – Yadav. Accused persons thereafter ran away towardsCIDCO. He alongwith PW 1 – Yadav, Deepak, Raju and Fazil Bhai broughtChingya to Government Hospital, Nanded in an auto-rickshaw. The medicalofficer there declared Chingya dead.27.He was subjected to a searching cross-examination. According tohim, he admitted that from coming towards Chandasing corner fromDhanegaon one has to go by Hyderabad-Nanded road. Chandasing cornerwas opposite to Santosh Bar. There were 10-15 hotels. 4-5 mobile rechargeshops were also there. He had not been to Hari Om Hotel. It takes 5 to 1014 / 24 APEAL-42-18+1.odtminutes by walk to reach Chandasing corner from his residence. He,however could not state name of the shop whereat he recharged his cellphone on that day. He claimed ignorance that PW 1 - Yadav had consumedliquor on the given day. According to him, they were with him in the hospitaltill 12:00 midnight. He admitted to have not been knowing the accusedpersons by their names. According to him, he had facial acquaintance withthem. He was confronted with the statement before the Magistrate, whereinhe stated to have seen the accused persons first time on the give day.According to him, on the same day he was summoned to the police stationfor identification of the accused and there he came to know about theirnames. He could not state whether there were injuries on the persons of theaccused when he saw them in the police station. He admitted to have notbeen shown the cement brick by police.28.PW 8 – Pravin was a witness to some previous incident that wassaid to be the motive for the offence. It is in his evidence that he knew theaccused persons since they were his neighbours. According to him, fourmonths before the day of the incident, appellant – Satyam had shown himthe girlfriend of appellant – Sunil Kokate. Two days thereafter both theappellants caught him near Kohinoor Mill and beat him up. Appellant – SunilKokate even questioned him whether he said anything about his lover. Hethen ran away from there. Again after two days Prabhakar Yede (acquittedaccused) caught him in front of Rubi Hall. Both the appellants and VijayDhage were with him. Prabhakar questioned him as to whether there is15 / 24 APEAL-42-18+1.odtquarrel between him and Sunil Kokate. Sunil Kokate said he doesn’t knowand let him go. Still Prabhakar started beating him (Pravin). That timeChingya was passing by that road. Since Chingya was knowing him, hestarted beating up those accused. That time Prabhakar chased Chingya withstones. Chingya then fled away. He (Pravin) too ran away. After 3-4months he learnt about murder of Chingya.29.It appears that the aforesaid incident is sought to be projected asmotive for committing murder of Chingya. Since PW 8 - Pravin is not awitness to the incident in question, we do not propose to refer to his cross-examination. Only some material portion relating to himself brought onrecord during cross-examination is to the effect that crime vide C.R. No. 376of 2014 was registered against him in December 2014. He was evenarrested on 11th December, 2014. He was remanded to police custody forfour days. He was behind the bars for three months. It was only in February2015 he was released on bail. He was confronted with his police statementwhich is silent to state that four months before the incident in question,Satyam shown him lover of appellant - Sunil Kokate. It was a materialomission amounting to contradiction. He even could not give day, date andmonth in which appellant – Satyam had shown him the girlfriend of appellant– Sunil Kokate. In view of above, we do not propose to rely on the evidenceof PW 8 – Pravin.30.PW 7 – Suresh was a Police Naik. He carried the seized articles16 / 24 APEAL-42-18+1.odtto R.F.S.L., Aurangabad on 01st January, 2014. Copy of the forwarding letterunder the signature of PW 10 – Mundhe is at Exhibit 84.31.PW 10 – Mundhe was the Investigating Officer. His evidencediscloses that on 27th December, 2013 the informant, PW 1 - Yadav hadcome to the police station and reported about the incident. The F.I.R.(Exh.54) was thus lodged. He then rushed to the crime scene and preparedcrime scene panchanama (Exh.59). It was shown by the informant himself.A blood stained shirt of the deceased was seized from the crime scenebesides a goggle stained with blood, broken pieces of beer bottle stainedwith blood and earth as well. He then referred to the seizure panchanama(Exh.59). According to him he deposited the seized articles with Muddemalclerk. He arrested Accused Nos.1 to 4 from the nearby of the crime scenewithin half an hour of the incident. They were intoxicated. Injuries were ontheir person. He, therefore, referred them for medical examination. Theirinjury certificates were brought on record vide Exhibits 100 to 103. Then heseized clothes on their person. Those were stained with blood. He referredto panchanamas Exhibits 65 to 68 in that regard. He also seized clothes onthe person of the informant under panchanama Exhibit 70 and clothes ofDeepak and Vikas as well under panchanama Exhibits 69 and 70,respectively. Clothes on the person of Vikas were also stained with blood.On 29th December he arrested accused Sunil Suryawanshi (acquitted). It isfurther in his evidence that appellant – Sunil Kokate made a disclosurestatement that he will produce the knife. Accordingly, he led the police17 / 24 APEAL-42-18+1.odtofficials and the panchas to CIDCO via Dhawale corner. Then he took themto a place nearby Durga Devi Temple. The jeep was halted at the instanceof appellant – Sunil Kokate. He then led them to a well nearby the temple. Itwas a dry well, containing debris. Appellant – Sunil Kokate took out a knifefrom the well. He sent all the seized articles to R.F.S.L., Aurangabad.32.PW 10 – Mundhe had requested the Medical Officer to giveopinion as to whether the injuries on the person of the accused were self-inflicted. A communication in that regard is at Exhibit 107. No response wasreceived thereto. During cross-examination, he admitted that accused nos. 1to 4 had suffered injuries in the quarrel. He had recorded statement of theaccused persons in respect of the injuries sustained by them. Thosestatements, however not made part of the charge-sheet. He denied thataccused had come to the police station to lodge the report that someunknown persons had beaten them up. He admitted to have found nocement brick at the crime scene. According to him, PW 6 - Vikas met him on28th December for the first time. No T.I. Parade was held for identification ofthe accused. The C.A. reports find place at Exhibit 112 to 114.33.Admittedly, the incident took place by little past 07:30 p.m. on 27thDecember, 2013 in a lane adjoining to Santosh Bar and the bus stand. In thesaid incident, Chingya lost his life. Postmortem report (Exh.92) discloses thedeceased died of stab injury to heart.18 / 24 APEAL-42-18+1.odt34.The prosecution had filed the charge-sheet against five persons,including the present appellants alleging them to have had formed unlawfulassembly in furtherance of common object thereof committed murder ofChingya. Admittedly, three of the five accused have been acquitted by thetrial Court. The State did not prefer appeal against them. One of the threeacquitted was alleged to have armed with a dagger. Be that is it may.35.The fatal injury i.e. stab on the chest has been attributed toappellant – Sunil Kokate. PW 1 – Yadav’s evidence indicates that on thegiven day he was in the company of deceased – Chingya. He received aphone call of Raju Jadhav, who asked him to come at Padmavati Beer Bar.Therefore, they went there. It was 03:30 p.m. Raju Jadhav was accompaniedby three more persons. Those three left the beer bar mid way. PW 1 –Yadav, Raju Jadhav and the deceased remained together. By 07:00 p.m.they left the beer bar to take tea. They, therefore, went to Hari Om TeaHotel. The deceased left the hotel to answer nature’s call (urinating/peeing).After a while, PW 1- Yadav claimed to have heard noise emanating from thelane wherein the deceased had gone to answer nature’s call. The shoutwas, “gk fpaX;k vkgs- ;kyk ekjk”. He, therefore, rushed towards Chingya.Appellant – Satyam caught him (Yadav) hold so as to prevent him fromintervening in the quarrel to save Chingya (deceased). His evidence furtherindicates that Satyam then freed him. There before appellant – Sunil Kokatehad sat on the person of the deceased and gave a knife blow on his chest.The said blow proved fatal. Six more injuries were noticed on the person of19 / 24
Decision
APEAL-42-18+1.odt42.For all the aforesaid reasons, both the appeals stand disposed ofin terms of following order :-ORDER(I)Criminal Appeal No. 201 of 2018 stands dismissed.However, appellant – Sunil @ Sunya Gangadhar Kokatestands acquitted of the offence punishable under Section34 of the Indian Penal Code.(II)Criminal Appeal No. 42 of 2018 is partly allowed.(III)Impugned judgment and order dated 30th November,2017 passed by Additional Sessions Judge, Nanded inSessions Case No. 44 of 2014 thereby convicting andconsequently sentencing appellant – Satyam VenkatraoHatte for the offence punishable under Section 302 readwith Section 34 of the Indian Penal Code is hereby setaside.(IV)Instead, appellant – Satyam Venkatrao Hatte is convictedfor the offence punishable under Section 323 read withSection 34 of the Indian Penal Code, and therefore,sentenced to suffer imprisonment for the period which hehad already undergone (275 days) and to pay fine ofRs.1,000/- (Rupees One Thousand).(V)Appellant – Satyam Venkatrao Hatte is already on bail.He, therefore, need not be surrendered back to the jail.His bail bonds stand cancelled.(VI)Criminal Application No. 527 of 2018 stands disposed of.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD24 / 24