@JUDGMENTTAG-ORDER
Vishnu Sahai, J.@mdashThrough this appeal, the appellants have challenged the judgment and order dated 2-2-1998 passed by the IV Additional Sessions Judge, Pune in Sessions Case No. 140 of 1996 and Sessions Case No. 283 of 1996, convicting and sentencing each one of them to undergo imprisonment for life and to pay a fine of Rs. 500/- for the offence u/s 302 r/w 34 I.P.C.
Along with the appellants, one Chotya alias Abhay Arvind Mandhare was also prosecuted and tried but, he has been acquitted vide the impugned judgment and the State of Maharashtra has not impugned his acquittal by preferring an appeal u/s 378(1) Cr.P.C.
2. In short, the prosecution case as emerging from the evidence of the three eye witnesses of the incident namely Rahul Kadadekar, Anil Labade and Kamlakar Pandhe, P.Ws. 1, 2 and 3 respectively is as under :--
On 5-11-1995 appellants Santosh Chikhale and Sanjay Chikhale along with one Sachin Garud assaulted Kamlakar Pandhe. Next day i.e. on 6-11-1995 at about 7.30 p.m. Rahul Kadadekar, Anil Labade, Kamlakar Pandhe along with the deceased Vishnu Bankhole and some others went to the house of appellant Santosh Chikhale situated in Manchar in the District of Pune and asked him as to who were the persons who had beaten Kamlakar Pandhe and the reason for beating him. Santosh Chikhale replied that he and the acquitted accused Chotya alias Abhay Arvind Mandhare had beaten Kamlakar. Thereupon, Rahul Kadadekar and others asked him as to where Chotya was? Santosh Chikhale replied that he was in Shere-E-Punjab Hotel. Thereafter, Rahul Kadadekar and others along with Santosh Chikhale came to Shere-E-Punjab Hotel. Santosh Chikhale and Vishnu Bankhole remained outside the hotel. Rahul Kadadekar and others went inside the hotel. After sometime, they came out and saw that the appellants Mahesh Morade, Santosh Thorat and Sanjay Chikhale were catching hold of Vishnu Bankhole; the appellant Santosh Chikhale inflicted a gupti blow (sword stick) on the chest of Vishnu Bankhole; and Chotya alias Abhay Arvind Mandhare also inflicted a knife blow upon him. After assaulting Vishnu Bankhole, the appellants and Chotya are alleged to have run away.
3. At about 8.15 p.m. same day, A.P.I. Rahulkumar Yewele P.W. 13 was at police station Manchar. At that time, some boys came and informed him that Vishnu Bankhole had been assaulted by some persons and was lying injured at Patilwada. He immediately proceeded for Patilwada and on reaching there, found Vishnu Bankhole lying on the ground. He reached him to Gujarathi Hospital at Manchar but, the doctor after giving him first aid advised that he be taken to Pune. Consequently, he sent Vishnu Bankhole to Ruby Hospital, Pune.
3A. The F.I.R. of the incident was lodged by Rahul Kadadekar P.W. 1 at 9.45 p.m. same day at police station Manchar. On its basis, A.P.I. Rahulkumar Yewele registered an offence u/s 307 I.P.C. against the appellants and the acquitted accused Chotya.
4. Same night, Vishnu Bankhole succumbed to his injuries. The case was converted to one u/s 302 I.P.C. The post mortem examination of the corpse of Vishnu Bankhole was conducted on 7-11-1995 by Dr. Milind Wabale P.W. 11 who found on the corpse a solitary stab wound on the right side of chest 3 1/2 inches away from midline and 5" below level of clavicle measuring 1 1/4" x 1/2". On internal examination, fracture of 4th rib on right side, rupture of right Plura and stab injury on upper lobe of right lung was noticed. In the opinion of Dr. Wabale, this internal damage corresponded with the stab injury. Dr. Wabale also opined that the deceased died as a result of shock and hemorrhagic on account of the stab injury suffered by him, the said injury was sufficient in the ordinary course of nature to cause death and could be caused by Article No. 14 (the gupti recovered on the pointing out of appellant Santosh Chikale).
5. Investigation was conducted in the usual manner by A.P.I. Rahulkumar Yewele PW. 13 On the night of the incident itself, he arrested the appellants Mahesh Morade and Santosh Thorat On 9-11-95 he arrested appellant Santosh Chikale
On 1311-1995 during the course of interrogation, the appellant Santosh Chikhale made a statement that he could get the weapon of assault namely gupti recovered. Consequently A.P.I. Yewele with public panch Pandurang Morade P.W. 12 and some police personnel proceeded with Santosh Chikhale in a Jeep. Santosh Chikhale took them near a drainage near Annasaheb Awate College at Mahchar, and took out a gupti Article 14 which was concealed below some earth. The said recovery was made under a panchanama.
During the course of investigation API Yewele recovered blood stained earth from the place of the incident and interrogated the witnesses. He also took into possession blood-stained clothes of the deceased.
After completing the investigation, A.P.I. Yewele submitted the charge sheet against the appellants. Injuries of the appellants were medically examined. The appellant Santosh Thorat was medically examined on 7-11-1995 at 1.45 p.m. by Dr. Prakash Gawali P.W. 4 who found on his person one abrasion along with contusion on front side of chest 2 cm. x 2 .cm. The said injury was simple in nature.
Dr. Gawali, same day also examined the appellant Mahesh Morade and found on his person a cut injury 1 1/2 cm. x 1/2 cm on right palm on lower lateral side. The said injury was simple in nature.
During cross-examination, Dr. Gawali stated that injury of Mahesh Morade was possible to Article No. 14 (the gupti recovered on the pointing out of appellant Santosh Chikhale).
Injuries of appellant Santosh Chikhale were medically examined on 10-11-1995 at 1.30 p.m. by Dr. Venkatesh Ingale P.W. 5. They were as under :--
"1. Contusion on left side chest, 4 cm. x 1 cm. Bluish in colour.
2. Contusion-abrasion on left upper 1/3rd arm laterally 3 cm. x 2 cm.
3. Contusion bluish in colour and abrasion covered with brownish scab.
4. Abrasion on left elbow laterally 1 cm. x 1/2 cm. covered with brownish scab.
5. Contusion on left eye. Lower 1/3rd posterior 3 cm. x 1 cm. Bluish in colour."
All the injuries were simple in nature. During cross-examination, Dr. Ingale stated that they could be caused by a stick or iron bar.
7. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants were charged for offences punishable under sections 147, 148 and 302 r/w 34 I.P.C.
During trial, in all the prosecution examined 13 witnesses. Three of them namely Rahul Kadadekar, Anil Labade and Kamlakar Pandhe were examined as eye-witnesses. In defence, DW. 1 Dr. Lokhare was examined, to show that the stab injury suffered by the deceased could not have been caused by Article No. 14 which was the gupti recovered on the pointing out of appellant Santosh Chikhale.
From the cross-examination of eye-witnesses, it appears that defence of the appellants was that Rahul Kadadekar and others while trying to assault Santosh Chikhale caused injury on the right palm of the appellant Mahesh Morade when the mother of appellant Santosh Chikhale tried to intervene she was assaulted by them; and when they were trying to assault Santosh Chikhale, he avoided the assault and consequently Vishnu Bankhole sustained injuries.
The trial Judge rejected the defence of the appellants and rightly in our judgment, for apart from other infirmities it saw the light of the day for the first time in the suggestion given to the eye-witnesses during their cross-examination and the said suggestion was denied by them. He believed the prosecution evidence vis-a-vis the appellants, convicted and sentenced them in the manner stated in para 1. He however, gave benefit of doubt to accused Chotya alias Abhay Arvind Mandhare.
8. We have heard Mr. S.R. Chitnis with Mr. R.S. Chitnis for the appellants and Mr. S.G. Deshmukh, Additional Public Prosecutor for the State of Maharashtra respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statement of the appellants recorded u/s 313 Cr.P.C. and the impugned judgment. In our view, this appeal deserves to be partly allowed. We feel that the appellants Mahesh Morade, Santosh Thorat and Sanjay Chikhale deserve the benefit of doubt. We also feel that no offence u/s 302 I.P.C. is made out against Santosh Chikhale. We feel that only an offence u/s 304 (Part I) l.P.C. is made out against him.
9. We have no difficulty in holding that the deceased Vishnu Bankhole was done to death at about 8 p.m. on 6-11-1995 outside Shere-E-Punjab Hotel in Manchar. In respect of this, we have the evidence of all the three eye-witnesses namely Rahul Kadadekar, Anil Labade and Kamlakar Pandhe. Although they were extensively cross-examined but, nothing could be extracted in their cross-examination which would erode their claim regarding the place of the incident. Again, we find that from the place of the incident, the Investigating Officer API Yewele recovered plain and blood-stained earth under a panchanama in the presence of Public Panch Rajaram Bankhole P.W. 6. We also find that no suggestion has been given to the eye-witnesses that the incident did not take place at the place alleged by the prosecution.
10. We also have no doubts in our mind regarding the presence of the three eye witnesses on the place of the incident. The same in our view, was perfectly natural. These three eye-witnesses have alleged that on 5-11-1995, appellants Santosh Chikhale and Sanjay Chikhale along with Sachin Garud had assaulted Kamlakar Pandhe P.W. 3 and the next day i.e. 6-11-1995. at about 7.30 p.m. they along with the deceased Vishnu Bankhole and some others went to the house of the appellant Santosh Chikhale and enquired from him as to who had beaten Kamlakar. Santosh Chikhale replied that he and the absconding accused Chotya had beaten him. When they enquired where Chotya was, Santosh Chikhale replied that he was at Shere-E-Punjab Hotel. Consequently, along with Santosh Chikhale, these witnesses the deceased Vishnu Bankhole and others came to Shere-E-Punjab Hotel where the incident took place.
10A. Evidence of the three eye-witnesses is that the appellant Santosh Chikhale and Vishnu Bankhole remained outside the hotel and they went inside the hotel. After coming out from the hotel, Rahul Kadadekar P.W. 1 and Anil Labade P.W. 2 saw the appellants Mahesh Morade, Santosh Thorat and Santosh Chikhale catching hold of Vishnu Bankhole.
Evidence of Kamlakar Pandhe P.W. 3 however, does not refer to the said appellants, catching hold of Vishnu Bankhole. However, all the three eye-witnesses state that Santosh Chikhale inflicted a gupti blow on the chest of the deceased and Chotya assaulted the deceased with a knife.
11. The trial Judge for the reasons contained in para 29 of the impugned judgment, acquitted Chotya primarily on the ground that the eye-witnesses did not see the assault made by him, and no weapon was recovered, on his pointing out. In this connection it would be pertinent to refer to the cross-examination of Kamlakar Pandhe P.W. 3 who candidly stated " I again say that I only saw the assault by accused No. 3 (Santosh Chikhale) with gupti on Vishnu". As mentioned in para 1, the State of Maharashtra has not impugned Chotya''s acquittal.
12. The question is whether on the evidence of the three eye-witnesses, would it be safe to uphold the involvement of all the appellants in the incident. Our answer is in the negative.
We (eel that it would not be safe to uphold the participation of the appellants Mahesh Morade, Santosh Thorat and Sanjay Chikhale in the incident.
It should be borne in mind that all the three eye-witnesses are interested witnesses. All three of them, on the date of the incident had gone to the house of the appellant Santosh Chikhale to find out as why he had beaten and with whom he had beaten, Kamlakar. It is also in their evidence that the deceased Vishnu Bankhole accompanied them at the said time. In such a situation, we have to approach the testimony of these witnesses with caution, and when we do that, the result would be extending the benefit of doubt to the said appellants.
It is significant to point out that Kamlakar Pandhe P.W. 3 has not deposed in his examination-in-chief that the said appellants caught hold of Vishnu Bankhole when appellant Santosh Chikhale and the absconding accused Chotya assaulted him. In other words, in respect of the role of catching hold, we have the evidence of two interested witnesses Rahul Kadadekar and Anil Labade. In our view, it would not be safe to accept their testimony.
13. If the role of catching hold of the deceased Vishnu Bankhole attributed to the appellant Mahesh Morade, Santosh Thorat and Sanjay Chikhale becomes doubtful, there is no other evidence on the basis of which, it can be concluded that the said appellants shared the common intention along with the appellant Santosh Chikhale to commit the murder of the deceased. Hence, the benefit of doubt has to be given to them.
14. The question which remains is whether the trial Judge was justified in convicting the appellant Santosh Chikhale for the offence of murder. It is true that after acquittal of Mahesh Morade, Santosh Thorat and Sanjay Chikhale, his conviction u/s 302 r/w 34 I.P.C. cannot be affirmed, but since the definite evidence is that he gave a fatal blow, there is no impediment in our converting it into one u/s 302 I.P.C. simpliciter.
15. However, after entertaining doubts about the catching hold story, the situation which emerges is that on account of beating of Kamlakar Pandhe which had taken place a day before, the appellant Santosh Chikhale inflicted a solitary gupti blow on Vishnu Bankhole. In our view, the appellant was protected by the right of private defence of person, in doing so. It is the case of the prosecution in the F.I.R. that Vishnu Bankhole had caught hold of Santosh Chikhale. This has also come in the cross-examination of Anil Labade P.W. 2. In such a situation, in our view, the appellant Santosh Chikhale had the right of private defence of person to cause harm short of death, as contemplated by section 101 I.P.C. Since, he exceeded the right and instead killed Vishnu Bankhole by inflicting fatal gupti blow on his chest, he exceeded the right of private defence of person and committed an offence u/s 304 I.P.C.
15-A. The question is in which part of section 304 I.P.C. would the act of appellant Santosh Chikhale fall. In our view, considering the over all circumstances, and bearing in mind that Vishnu Bankhole was not done to death on the spot, the offence made out against the appellant Santosh Chikhale would be one u/s 304 (Part I) I.P.C.
We feel that there can be no doubt that when Santosh Chikhale inflicted a solitary gupti blow on the chest of the deceased, he had the intention to cause harm, as was likely to cause death as contemplated by First Part of section 304 I.P.C.
16. We may mention that the participation of the appellant Santosh Chikhale in the incident is borne out by the ocular account furnished by the three eye-witnesses which is categorically to the effect that the gupti injury inflicted by him struck Vishnu Bankhole on the chest. The said account is corroborated by the post-mortem report which shows a stab injury on the chest of the deceased Vishnu Bankhole and the opinion of the Autopsy Surgeon Dr. Wabale who stated that the said injury could be caused by Article No. 14 (gupti recovered on Santosh Chikhale''s pointing out).
For reasons mentioned in para 27 of the impugned judgment, the learned trial Judge acted rightly in rejecting the evidence of D.W. 1 Dr. Lokhare who stated that the said injury could not be caused by Article No. 14.
It is significant to point out that in the F.I.R. of the incident which was lodged within two hours of the incident, viz at 9.45 p.m. the same day, by Rahul Kadadekar P.W. 1, it has been categorically mentioned that the gupti blow inflicted by Santosh Chikhale struck the deceased on his chest.
16A. In addition to the ocular account, the involvement of Santosh Chikhale is established by recovery of blood-stained gupti on his pointing out in the presence of A.P.I. Yewele P.W. 13 and public panch Pandurang Morade, P.W. 12. The evidence of these witnesses indicates that the gupti was concealed beneath the earth and was taken out by the said appellant. It is significant to point out that on the gupti, human blood of AB group was found by the Chemical Analyst. We may mention that neither of the two witnesses of recovery examined by the prosecution bore any animus against the appellant Santosh Chikhale and in that view of the matter, we safely accept their evidence.
In our view, this is a clinching circumstance which fixes the participation of the appellant Santosh Chikhale in the incident and demolishes the submission of Mr. Chitnis that the knife blow inflicted by the acquitted accused Chotya may have caused the solitary stab injury of the deceased. The circumstance that the gupti recovered was stained with human blood clearly shows that it was the blow inflicted by this appellant which caused the solitary stab injury suffered by the deceased.
17. Mr. S.R. Chitnis, learned Counsel for the appellants made a large number of submissions before us. He strenuously urged that there were unexplained injuries on the side of the appellants which give rise to the inference that the appellant Santosh may have acted in the right of private defence of person.
So far as injuries of Santosh Chikhale are concerned, we have our grave doubts that they were received in the incident. It is pertinent to note that they were examined on 10-11-1995 i.e. four days after the incident. In our view, had they been received during the incident, Santosh Chikhale would have get them examined much earlier. No reason has been furnished for their belated examination. It should also be borne in mind that the injuries of Santosh Chikhale were simple in nature and could have been manufactured also.
So far as injuries of Santosh Thorat and Mahesh Morade are concerned, they are very minor and superficial injuries. It is well-settled that the prosecution is under no obligation to explain such injuries.
At any rate, the injuries received on the side of the appellants were all simple in nature and in view of the provisions contained in section 101 I.P.C., the extent of right of private defence of person available to the appellant Santosh Chikhale was causing harm short of death. In that view of the matter, the appellant exceeded the right of private defence of person and committed the offence u/s 304 (Part I) I.P.C.
Second submission canvassed by Mr. Chitnis is that according to the prosecution the appellant Santosh Chikhale with a gupti and the absconding accused Chotya with a knife assaulted the deceased Vishnu Bankhole and since there is only one stab injury on the person of the deceased, it may be that the said injury may have been caused by Chotya and not by the appellant Santosh Chikhale. In this view of the matter, Mr. Chitnis contended that Santosh Chikhale deserves the benefit of doubt. We must frankly confess that the submission was attractive on the first blush but on a deeper scrutiny, we were reminded of the trite that first impression are often deceptive.
In our view, the evidence categorically fixes that it was the gupti blow inflicted by Santosh Chikhale which caused stab injury on the chest of the deceased. We say this because not only in the F.I.R., there is a categorical mention that gupti blow inflicted by Santosh Chikhale caused injury on the chest of the deceased but also because the eye-witnesses have stated to this effect and the Investigating Officer in the presence of public panch Pandurang Morade P.W. 12 recovered the blood stained gupti on the pointing out of the appellant Santosh Chikhale. On the said gupti the Chemical Analyst found human blood of AB group. All this clearly shows that it was the blow of Santosh Chikhale which caused stab injury on the chest of the deceased.
In this connection, it would also be pertinent to refer to the evidence of P.W. 3 Kamlakar Pandhe who in cross-examination candidly stated that "I again say that I only saw the assault by accused No. 3" (Santosh Chikhale) with gupti on Vishnu Bankhole. Again, it should be borne in mind as observed by the learned trial Judge in para 29 of the impugned judgment, that no recovery of knife is alleged to have taken place on the pointing out of Chotya.
18. We also do not find force in the third submission of Mr. Chitnis namely that the offence made out against the appellant Santosh Chikhale would be one u/s 304 (Part II) I.P.C. We find that the facts of the instant case squarely show that the appellant inflicted a severe gupti blow on the chest of the deceased which was accompanied by severe internal damage and resulted in his death in a couple of hours. In our view, considering the injury caused by the appellant and the circumstances in which the incident took place, it can be safely inferred that the appellant intended causing a injury which was likely to cause death of the deceased within the terms of section 304 (Part I) I.P.C. The decision of our Court, to which one of us was a party (Vishnu Sahai, J.) reported in 1998 All. Mah. 422, State of Maharashtra v. Munna Abdul Salam Shaikh, cited by Mr. Chitnis to show that the offence made out would be one u/s 304 (Part II) I.P.C., was rendered by the Court in view of the peculiar facts of the said case and the circumstances mentioned in para 27 of the said decision would not be applicable in the facts of our case.
19. The question which remains is the quantum of sentence which should be awarded to the appellant Santosh Madhukar Chikhale for the offence, u/s 304 (Part I) I.P.C. Mr. Chitnis, learned Counsel for the appellants urged that the appellant Santosh Chikhale was aged 17 years at the time of the incident. He also urged that in his statement u/s 313 Cr.P.C. the appellant Santosh Chikhale has given out his age as 19 years. He also pointed out that the said statement was recorded on 12-12-1997 and the incident took place on, on 6-11-95, In this view of the matter, he is right, in contending that he was aged 17 years at the time of the incident. Consequently, Mr. Chitnis urged that a lenient view should be taken in the matter of sentence. We have given our anxious consideration to the submission of Mr. Chitnis and in our view, considering the over all circumstances, a sentence of five years R.I. coupled with a fine of Rs. 25,000/- and two years R.I. in default would meet the ends of justice. We also feel that in case the appellant pays the fine, the whole of it should be paid as compensation to the legal heir/legal heirs as the case may be of the deceased Vishnu Bankhole.
20. In the result, this appeal is partly allowed.
We acquit appellants Mahesh Jagan Morade, Santosh Bhaskar Thorat and Sanjay Madhukar Chikhale for the offence u/s 302 r/w 34 I.P.C. and set aside their convictions and sentences, on the said count. In case they have paid fine, it shall stand refunded to them. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
Although we acquit the appellant Santosh Madhukar Chikhale for the offence u/s 302 r/w 34 I.P.C., and set aside his conviction and sentence on the said count but we find him guilty for the offence punishable u/s 304 Part I I.P.C. and sentence him to undergo 5 years R.I. and to pay a fine of Rs. 25,000/- and two years R.I. in default thereunder. The fine shall be deposited in the trial Court within a period of one year from today. In case the said appellant pays the fine, the whole of it shall be paid as compensation to the legal heir/legal heirs as the case may be, of the deceased Vishnu Kondiba Bankhole. The trial Court shall inform the legal heir/legal heirs of the deceased as the case may be, about this compensation and pay the same to the person/persons, as the case may be, entitled to receive it.
Appellant Santosh Madhukar Chikhale is in jail and shall be detained therein till he serves out his sentence. In case he has paid the fine of Rs. 500/- imposed u/s 302 r/w 34 I.P.C., the same shall stand refunded to him.
21. Order accordingly.
