Rajesh vs State of Maharashtra

B.R. Gavai, J.—Being aggrieved by the judgment and order passed by the learned Sessions Judge, Nagpur in Session Trial No. 121 of 2010, thereby convicting the appellants for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149 of the Indian Penal Code and sentencing them to undergo under simple imprisonment for 8 days and to pay a fine of Rs. 100 each, in default of payment of fine to undergo further S.I. for 5 days, simple imprisonment for one month and to pay a fine of Rs. 100/- each and in default of payment of fine to undergo further S.I. for 5 days, simple imprisonment for one month and to pay a fine of Rs. 100/- each, in default of payment of payment of fine to undergo further S.I. for 5 days, rigorous imprisonment for life and to pay a fine of Rs. 1000/- each and in default of payment of fine to undergo further R.I. for one month, respectively, the appellants (Ori. accused Nos. 1 to 3, 5 and 6) have filed this appeal. The prosecution case in brief is that, informant PW 1 Khushal Ishwar Kalse lodged a report with Police Station Ranapratap Nagar, Nagpur stating therein that he along with Deepak Tawade and his cousin Banti @ Roshan Kalse were going towards their house from Sawarkarnagar Chowk. It is alleged that near Sanjay Kirana Stores they found original accused Nos. 1 to 3, 5 and 6 holding sword, knife and Gupti in their hands and standing in front of the said Kirana Stores. It is alleged that accused No. 6 Ravi @ Tyason was holding a sword, accused Satish Dhurve was holding a knife and accused Rajesh @ Baharia was holding a Gupti. On seeing them, the accused persons circled deceased Banti and accused No. 6 Tyason inflicted a blow of sword on the head of Banti, accused No. 1 Rajesh gave a blow of knife on the face of Banti, accused No. 5 Satish Dhurve inflicted a blow of Gupti and accused No. 3 Suraj @ Mithun gave blows of knife on the hand, palm, neck and back of deceased Banti.

On the basis of oral report of PW 1 Khushal, an FIR (Exh.27) came to be registered vide Crime No. 299 of 2009. PW 4 PSI Sudhakar Gangaram Paturde went to the spot and prepared spot panchanama. When he returned back to the Police station accused No. 1 Rajesh Madavi, accused No. 2 Rajesh Dashrath Madavi and accused No. 3 Suraj @ Mithun Madavi came to the Police station. After medical examination he arrested them and handed over the investigation to API Baburao Chavhan. During the investigation certain incriminating material came to be seized at the instance of the accused. At the conclusion of the investigation, a charge sheet came to be filed in the court of Judicial Magistrate (F.C.) against six accused. Since the case was exclusively triable by the Court of Sessions, the same came to be committed to the Session Court, Nagpur. The charges were framed, Accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, learned Trial Judge convicted the appellants/accused for the offences as aforesaid. However, accused No. 4 is concerned, he was acquitted.

Shri Raut, the learned counsel appearing on behalf of the appellants submits that the learned Trial Judge has grossly erred In convicting the appellants. He submits that both the eyewitnesses i.e. PW 1 Khushal and PW 3 Vikey are interested witnesses. He further submits that their evidence is also not consistent with each other. He submits that evidence of PW 2 Gendalal Kalse is of no use to the prosecution case inasmuch as he is not an eyewitness. He further submits that the so called recovery at the instance of accused No. 6 Ravi is also of no consequence to the prosecution case. The learned counsel therefore submits that the order of conviction is not sustainable and the appeal deserves to be allowed.

As against this, the learned APP submits that the evidence of PW 1 clearly implicates all the appellants. The evidence of PW 1 is corroborated by the evidence of PWs 2 and 3. The learned APP further submits that there is also a recovery of weapons used in the crime at the instance of PW 6. He, therefore, submits that no interference would be warranted with the order of conviction.

With the assistance of the learned APP so also the learned counsel for the appellant, we have scrutinized the entire evidence on record.

PW 1 Khushal is an eyewitness. He states in his evidence that on 29th November, 2009 at 11 p.m. he along with Banti and Deepak Tayade was going towards their house. At that time, accused Nos. 1 to 6 were standing in front of Zopadpatti. He states that all accused came near them. At that time accused No. 6 Tyason was holding a sword in his hand. He states that accused No. 5 Satish Dhurve was holding a knife in his hand. Accused No. 1 Rajesh @ Bahira was holding a Gupti and rest of the accused were holding knives in their hands. He states that the accused no,6 Tyason inflicted a blow of sword on the backside of head of Banti and Banti fell down. Then accused No. 5 Satish Dhurve gave blows of knife on the chest and stomach of Banti, Accused No. 1 Rajesh @ Bahira inflicted blows of Gupti on the hand and leg of Banti, He states that he was standing there and witnessed the incident. An FIR came to be lodged on the basis of information given by this witness, Evidence of this witness sought to be attacked on the ground that he was standing idle when his close relative was being assaulted.

Insofar as the FIR is concerned, in the FIR also he states that initially accused No. 6 Tyason assaulted the deceased with knife on chest and accused Nos. 1 and 5 assaulted deceased with Gupti and knives respectively.

The evidence of PW 2 could not be much material assistance to the prosecution case, inasmuch as he has given evidence on the basis of the information received by him from Khushal and as such it is hearsay evidence.

PW 3 Vikey is the nephew of deceased Banti. He states that he had been to the shop of Munna for purchasing ''Kharraha'' and after purchasing ''Kharraha'' he was standing there. He states that all the accused were assaulting the deceased. He supports the evidence of PW 1 regarding the motive i.e. the quarrel, which took place between deceased and accused No. 6 Tyason in the jail. From the tenor of his evidence it would reveal that though this witness states that he was present at the time of incident and had come to the Police Station on the next day of the incident, his statement came to be recorded on 1st of December, 2009. Taking into consideration the fact that this witness is close relative of deceased and the fact that his statement is recorded after three days of the incident, we find that it would not be safe to rely on the evidence of this witness.

That leaves us only with the evidence of PW 1. insofar as the ocular testimony is concerned. As already stated herein above, PW 1 though names all the six accused, the specific role of assault is attributed only to accused No. 6 Ravi @ Tyason Uikey, accused No. 1 Rajesh @ Bahirya Madavi and accused No. 5 Satish Dhurve.

Insofar as the recovery of weapons is concerned, the same was made at the instance of accused Nos. 4 and 6. However, accused No. 4 has already been acquitted. Insofar as the recovery at the instance of accused No. 6 is concerned, the same is made on 3rd of December, 2009, in an open plot near the hospital of Dr. Padole, below the tree. We find that much credence cannot be given to such a recovery. As such, it will be the evidence of PW 1 which will have to be considered.

As already discussed herein above, PW 1 has attributed a specific role only to accused Nos. 1, 5 and 6. The incident has occurred on 29th November, 2009 at 23.00 hrs. and the information to the police is received immediately within 15 minutes. Though the evidence of this witness is sought to be attacked on the ground of conduct since he did not make an attempt to save the deceased, it is a settled law that a response to a situation may differ from person to person. A person seeing a relative being assaulted by 5 - 6 armed persons may not have a courage to oppose the assailants. The learned Trial Judge had an occasion to witness the demeanor of said witness. His evidence has been found to be trustworthy. From the perusal of his evidence we are also of the view that evidence of PW 1 appears to be reliable. In that view of the matter, we find that the evidence of PW 1 can be taken into consideration. The evidence of this witness only implicates accused Nos. 1, 5 and 6. No role is attributed to accused Nos. 2 and 3.

It is further to be noted that there is no evidence which has been brought on record to show common intention. Even according to the evidence of PW 1, the accused were standing on the spot from where the deceased and PW 1 were passing. It is further to be noted that the motive that is attributed is only to accused No. 6. In that view of the matter, we find that the conviction of the accused Nos. 2 and 3, who were not named by PW 1 in regard to a specific role, would not be sustainable. Insofar as accused Nos. 1, 5 and 6 are concerned, we find that on the basis of evidence of PW 1 no interference would be warranted with their conviction. Hence, we pass the following order. The appeal is partly allowed.

Appellant No. 2 - Rajesh Shankar Madavi (Ori.accused No. 2) and appellant No. 3 Suraj @ Mithun @ Bhurya Dhurve (ori. accused No. 3) are acquitted of the offences for which they were convicted.

They be set at liberty, if not required in any other case.

The appeal of the rest of the appellants - accused is dismissed.

Fees of the learned counsel appointed for the appellants are quantified at Rs. 5000/- (rupees five thousand only).