M.G.Giratkar, J
1. Criminal Appeal No.61 of 2017 is filed by appellant Appukhan @ Shafiq Khan s/o. Rafiq Khan (Original accused no.1) and Criminal Appeal
No.210 of 2017 is filed by appellant Mohd. Ayyub Sheikh s/o. Mohd. Yusuf Sheikh (Original accused no.2) assailing the Judgment in Sessions Trial
No.373 of 2011, dt.31.1.2017 whereby they are convicted by the Additional Sessions Judge at Nagpur for the offence punishable under Section 302 of
the Indian Penal Code and sentenced to undergo rigorous imprisonment for life each and to pay a fine of Rs.5,000/Â each, in default to suffer simple
imprisonment for six months each. Both the appellants are acquitted of the offence punishable under Section 324 r/w. 34 of the Indian Penal Code.
2. The case of prosecution against the appellants summarized as under :
On 13.5.2011, in the evening, at about 7.00 p.m., deceased Rajesh Lakhote along with his brother Ankush Lakhote, friends Nikuj Choudhary, Bunty
Mahiskar and Bablu went to Green Beer Bar for consuming beer and liquor. After consuming liquor and beer, they went to Pan Kiosk of one Rupesh
to purchase 'kharra' (bettle nut, tobacco with lime). At about 9.00 to 9.15 p.m., they ordered one kharra. They were chitÂchatting saying that liquor
and beer were costly served to them.Â
3. Accused Appu was sitting on the bench near pan kiosk. Appu intervened in their talk. There was quarrel between accused Appu and all those
persons. Accused Appu taken out one wooden plank and beat Ankush. Rupesh came out of pan kiosk and tried to pacify the quarrel. Accused
Appu gave call to accused Mohd. Ayub. Accused Mohd. Ayub came with a knife and gave a blow on the chest of deceased. Deceased Rajesh fell
down. His brother Ankush and others taken him to Government Medical hospital, Nagpur. He was declared dead. In the night, at about 1.30
a.m., Ankush went to Police Station, Kuhi and lodged oral report.
4. Police Inspector Hakke registered the crime. He went to the spot of incident, prepared spot panchanama, inquest panchanama etc. Further
investigation was carried out by Police Inspector Mr.V.K.Nale. He arrested both the accused and recorded their Confessional statement in presence
of panchas. As per the Confessional statement of accused Appu and Ayub (vide Exh. Nos.85 and 87), both the accused discovered wooden plank
and knife. Those were seized as per Seizure panchanama Exh. Nos. 86 and 88. The statements of witnesses were recorded. After complete
investigation, filed charge sheet before the Judicial Magistrate, First Class, Kuhi. The case was committed to the Court of Sessions at Nagpur for
trial.
5. Charge was framed at Exh.20ÂA for the offences  punishable under Sections 302, 324 r/w. 34 of the Indian Penal Code. Prosecution has
examined 14 witnesses. At the conclusion of trial, both the accused came to be convicted as stated above.
6. Heard Mr.C.R.Thakur, learned Counsel for the appellants. He has submitted that the learned trial Court rightly acquitted both the accused for the
offence punishable under Section 324 of the Indian Penal Code. Learned trial Court erred in convicting accused Appu for the offence punishable
under Section 302 of the Indian Penal Code. There was no any common intention between accused nos. 1 and 2 to kill deceased Rajesh. Therefore,
appellant/Original accused no.1 Appu cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code. He has submitted
that appellant/accused no.2 Mohd. Ayub can be convicted for the offence punishable under Section 304ÂI of the Indian Penal Code. Though he had
knowledge, he had no any intention to kill the deceased. Accused Mohd. Ayub reached to the spot of incident when call was given by accused
Appu. Learned trial Court not considered the evidence properly. At last, learned Counsel has submitted that both the appeals be allowed.
7. Heard Ms T.H.Udeshi, learned A.P.P. for the respondent/State. She has submitted that sufficient evidence adduced by the prosecution. Learned
trial Court has rightly recorded its findings. Hence, both the appeals are liable to be dismissed.
8. Dhamanand Chandrabhan Kamble (PWÂ1), Baba @ Bablu Shriram Adakane (PWÂ2), Vinod Bhagwatiprasad Shrivas (PWÂ3) have not
supported the prosecution.
9. Complainant Ankush Sunil Lakhote (PWÂ4) has stated in his evidence that, at the time of incident, at about 8.30 to 9.00 p.m., they went to Green
Bar. They consumed liquor. After 10 minutes, they came out. They went to pan shop of Rupesh. They were talking with each other about the
rate of liquor. Accused Appu intervened. There was quarrel between them. Accused Appu came on his person having wooden plank in his hand.
Then he gave call to Mohd. Ayub. Mohd. Ayub came there having knife in his hand. He immediately started assaulting by knife. Badal
Mhaiskar sustained injury on his finger. Thereafter, accused Mohd. Ayub assaulted his brother Rupesh by knife. He gave 2Â3 blows to his
brother. He saved two blows. He sustained injury of knife to his chest. Due to assault, his brother fell down. Thereafter, accused nos. 1 and 2
left the place. Ankush Lakhote (PWÂ4) along with Rinku Chaudhary (PWÂ7) taken the deceased to Government Medical hospital. The doctor
declared him dead. Thereafter, he lodged report (Exh.99). Crime was registered vide Exh.100.
10. Evidence of Ankush (PWÂ4) is well supported by the evidence of Rinku Chaudhary (PWÂ7). Rinku (PWÂ7) has stated that, after consuming
liquor, they went to pan kiosk of Rupesh. Accused Appu was sitting on the bench. There was discussion between them in respect of rate of
beer. Accused Appu intervened in their talk and talked something wrong. Accused Appu taken a wooden plank and started quarrelling. He
beat by wooden plank. Accused Appu gave call to accused Mohd. Ayub saying that “Yeh log maar rahe hai†(these persons are beating).
Accused Mohd. Ayub came from the Tyre shop. He dealt a blow of knife to Rajesh Lakhote. Bunty Mhaiskar intervened and he held knife by his
hand. Rajesh sustained injury of knife on his abdomen. Thereafter, both the accused ran away.Â
11. Pan kiosk owner Rupesh not supported the prosecution. Bunty died during the pendency of trial. Evidence of Ankush (PWÂ4) is well supported
by the evidence of Rinku (PWÂ7). Nothing is brought on record to disbelieve their evidence. Presence of accused persons is not denied. Evidence of
Ankush (PWÂ4) and Rinku (PWÂ7) are well supported by recovery of wooden plank and knife as per Discovery Statement of accused nos. 1 and
2. Both the witnesses identified the accused at the time of T.I. Parade conducted by NaibTahsildar Tikle. C.A. Report (Exh.31) show that the
clothes were stained with blood of blood group 'A'. Wooden plank and seized knife were having human blood. Blood group of blood found on
those articles, was not detected.
12. Learned trial Court recorded its finding that prosecution failed to prove injury caused by accused no.1 by wooden plank and therefore, rightly
acquitted the accused persons for the offence punishable under Section 324 of the Indian Penal Code. State has not filed any counter appeal.
13. In respect of offence punishable under Section 302 of the Indian Penal Code, learned trial Court convicted both the accused with the aid of
Section 34 of the Indian Penal Code for the said offence. It is pertinent to note that initially quarrel took place between accused no.1 Appu with
deceased Rajesh and his companion. Appu beat by wooden plank. There is no evidence to show that accused Appu taken any part to assault the
deceased. Evidence of Ankush (PWÂ4) and Rinku (PWÂ7) clearly show that accused Appu gave call to accused Mohd. Ayub. Mohd. Ayub
reached there with a knife and he assaulted deceased Rajesh by knife. There was no meeting of minds between accused nos. 1 and 2. During the
quarrel, accused Ayub frightened and he gave call to Mohd. Ayub saying that these persons were beating him (“Yeh log muze maar rahe
haiâ€). After hearing call of accused no.1 Appu, accused no.2 Mohd. Ayub reached to the spot of incident.
14. There was no common intention on the part of accused Appu. He had not taken any part to beat the deceased. Hence, he is entitled for acquittal
for the offence punishable under Section 302 of the Indian Penal Code.
15. Nothing is on record to show that there was any enmity between the deceased and accused persons. The incident took place because of sudden
quarrel. But accused no.2 was knowing that causing injury with such a dangerous weapon would cause death. But he had no any intention to kill
deceased Rajesh. Hence, accused no.2 Mohd. Ayub is liable to be convicted for the offence punishable u/s.304ÂI of the Indian Penal Code.Â
Hence, we proceed to pass the following order.Â
ORDER
Criminal Appeal No.61 of 2017 filed by appellant Appukhan @ Shafiq Khan s/o. Rafiq Khan (Original accused no.1) is allowed. The impugned
Judgment in Sessions Trial No.373 of 2011, dt. 31.1.2017 is quashed and set aside. Appellant Appukhan is acquitted of the offence punishable under
Section 302 of the Indian Penal Code. He is on bail. His bail bonds shall stand cancelled.
Criminal Appeal No.210 of 2017 filed by appellant Mohd. Ayyub Sheikh s/o. Mohd. Yusuf Sheikh (Original accused no.2) is partly allowed. Instead of
the offence punishable under Section 302 of the Indian Penal Code, accused Mohd. Ayub is convicted for the offence punishable under Section 304ÂI
of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and the order to pay fine of Rs.5,000/Â is maintained.
Set off is given of the period already undergone.
Accused no.2 Mohd. Ayub Sheikh s/o. Mohd. Yusuf Sheikh shall surrender before the trial Court to undergo remaining sentence.
Accused no.2 Mohd. Ayub Sheikh is on bail. He shall surrender his bail bonds.
The record and proceedings be sent back to the trial Court.
